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Supreme court frowns on Doma, but may not smile on gay marriage Supreme court frowns on Doma, but may not smile on gay marriage
(6 months later)
After Tuesday's tough session at the supreme court, Wednesday's hearing on the constitutionality of the Defense of Marriage Act (Doma) was supposed to be an easier time for advocates of gay equality. And it went well, mostly. Assuming that the court accepts that it has the authority to make a decision – and there's a tiny chance it might not – then Doma is almost certainly dead.After Tuesday's tough session at the supreme court, Wednesday's hearing on the constitutionality of the Defense of Marriage Act (Doma) was supposed to be an easier time for advocates of gay equality. And it went well, mostly. Assuming that the court accepts that it has the authority to make a decision – and there's a tiny chance it might not – then Doma is almost certainly dead.
The real question is, how will it die?The real question is, how will it die?
The best news: Wednesday's oral arguments strongly suggest that five of the justices believe that Doma is unconstitutional. Edie Windsor's lawyer did not put in a vintage performance – at one point, she couldn't identify the number of states that currently allow same-sex unions – but it didn't really matter. The four members of the court's liberal bloc all rejected arguments from Paul Clement, the lawyer representing the House Republicans defending Doma, that the law served any rational purpose.The best news: Wednesday's oral arguments strongly suggest that five of the justices believe that Doma is unconstitutional. Edie Windsor's lawyer did not put in a vintage performance – at one point, she couldn't identify the number of states that currently allow same-sex unions – but it didn't really matter. The four members of the court's liberal bloc all rejected arguments from Paul Clement, the lawyer representing the House Republicans defending Doma, that the law served any rational purpose.
Clement tried pushing the line that Congress, when it passed Doma in 1996, was only trying to keep things uniform as states began to mull legalizing gay nuptials. Elena Kagan, for one, was having none of that. Uniformity, she argued, would mean recognizing all states' marriages. Instead, lawmakers had been "infected by dislike, by fear, by animus". For proof, she read from a congressional publication that stated:Clement tried pushing the line that Congress, when it passed Doma in 1996, was only trying to keep things uniform as states began to mull legalizing gay nuptials. Elena Kagan, for one, was having none of that. Uniformity, she argued, would mean recognizing all states' marriages. Instead, lawmakers had been "infected by dislike, by fear, by animus". For proof, she read from a congressional publication that stated:
"Congress decided to reflect and honor a collective moral judgment and to express moral disapproval of homosexuality.""Congress decided to reflect and honor a collective moral judgment and to express moral disapproval of homosexuality."
"You're treating married couples differently," said Sonia Sotomayor. Stephen Breyer agreed as well. And as Ruth Bader Ginsburg observed, if married gay couples receive "no marital deduction, no social security benefits; your spouse is very sick but you can't get leave … one might well ask, what kind of marriage is this?" Ginsburg, the court's senior liberal, got the best line of the day when she observed that Doma creates "two kinds of marriage: the full marriage, and then this sort of skim milk marriage.""You're treating married couples differently," said Sonia Sotomayor. Stephen Breyer agreed as well. And as Ruth Bader Ginsburg observed, if married gay couples receive "no marital deduction, no social security benefits; your spouse is very sick but you can't get leave … one might well ask, what kind of marriage is this?" Ginsburg, the court's senior liberal, got the best line of the day when she observed that Doma creates "two kinds of marriage: the full marriage, and then this sort of skim milk marriage."
Anthony Kennedy, too, seemed to have no time for Doma. But unlike his contributions to Tuesday's Prop 8 hearing, on Wednesday Kennedy did not say a word about gay rights throughout the entire session. Instead, he honed in on his favorite bugbear, the encroachment of the federal government on states' powers. Marriage licenses are issued by individual states, but the federal government confers benefits on married couples – among them tax benefits, which are the focus of Windsor's suit. Doma, said Kennedy, puts Washington "at real risk of running in conflict with what has always been thought to be the essence of the state police power, which is to regulate marriage, divorce, custody."Anthony Kennedy, too, seemed to have no time for Doma. But unlike his contributions to Tuesday's Prop 8 hearing, on Wednesday Kennedy did not say a word about gay rights throughout the entire session. Instead, he honed in on his favorite bugbear, the encroachment of the federal government on states' powers. Marriage licenses are issued by individual states, but the federal government confers benefits on married couples – among them tax benefits, which are the focus of Windsor's suit. Doma, said Kennedy, puts Washington "at real risk of running in conflict with what has always been thought to be the essence of the state police power, which is to regulate marriage, divorce, custody."
And this is where things get tricky. Doma is a terrible, manifestly unconstitutional law and should be repealed – but the real ambition of both this suit and Tuesday's Prop 8 case was to have the court proclaim, as it never has before, that gays and lesbians are entitled to the equal protection of the laws. The second circuit, when it heard Windsor last year, ruled that gays do merit such protection. Don Verrilli, the solicitor general, argued the same today. But Kennedy seemed to back off from the whole question of gay equality, telling Verrilli:And this is where things get tricky. Doma is a terrible, manifestly unconstitutional law and should be repealed – but the real ambition of both this suit and Tuesday's Prop 8 case was to have the court proclaim, as it never has before, that gays and lesbians are entitled to the equal protection of the laws. The second circuit, when it heard Windsor last year, ruled that gays do merit such protection. Don Verrilli, the solicitor general, argued the same today. But Kennedy seemed to back off from the whole question of gay equality, telling Verrilli:
"You are insisting that we get to a very fundamental question about equal protection, but we don't do that unless we assume the law is valid otherwise to begin with.""You are insisting that we get to a very fundamental question about equal protection, but we don't do that unless we assume the law is valid otherwise to begin with."
So, while we may have something to celebrate come June, it's too soon to say how much. Suppose the court rules in Windsor along Kennedy's lines, invalidating Doma as an infringement of states' rights. Suppose, too, that the court punts on Perry, the Prop 8 case, and declares that the homophobes who brought the appeal lack standing. Then, both Doma and Prop 8 will be dead – and yet, after all these years, the court will have avoided saying a single word about whether gay people are entitled to equal rights under the constitution.So, while we may have something to celebrate come June, it's too soon to say how much. Suppose the court rules in Windsor along Kennedy's lines, invalidating Doma as an infringement of states' rights. Suppose, too, that the court punts on Perry, the Prop 8 case, and declares that the homophobes who brought the appeal lack standing. Then, both Doma and Prop 8 will be dead – and yet, after all these years, the court will have avoided saying a single word about whether gay people are entitled to equal rights under the constitution.
It'd be a victory, but it wouldn't be nearly enough.It'd be a victory, but it wouldn't be nearly enough.
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