Will SUPREMES Strike DOMA But Shy From Same-Sex Marriage

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For the first time, protesters for marriage equality outnumbered opponents here today.

The thousands of protesters in front of the U.S. Supreme Court could reflect the sea change in public opinion argued by Roberta Kaplan, attorney for Edith Windsor. United States v. Windsor challenges the definition of marriage, as only between a man and woman, as set forth in the Defense of Marriage Act (DOMA).

There were two days of arguments. On the first day, Proposition 8, a California referendum repealing gay marriage, was before the Court in Hollingsworth v. Perry. Proponents of Prop 8 argued the legal rights of the people to speak against same-sex marriage were being ignored. Since the State of California refused to defend Prop 8 the Justices seemed to shrink from taking a case that was not properly before it.

Nearly 18,000 people were married before the vote on Prop 8. Concern for the thousands of children of gay partners seeking marriage was voiced by Justice Anthony Kennedy, considered the swing vote between the conservatives and liberals on the Court.

The second day DOMA was argued.

Edith Windsor and her spouse Thea Spyer were legally married in Canada. They returned to New York City where Spyer died leaving Windsor with over $300,000 in an inheritance tax liability. This tax burden would not have accrued to married heterosexuals. In this case, striking down DOMA as an unconstitutional violation of the Eqaul Protection clause of the 14th Amendment seemed a likely outcome.

Only nine States and the District of Columbia legalized gay marriage. DOMA was signed into Federal law, in 1996, by President Bill Clinton at a time when homosexuality was outside of the protection of law. The House Report indicates certain legislators at that time voted for DOMA to preserve the sanctity of marriage and demonstrate their disapproval of the homosexual lifestyle.

President Barack Obama has refused to defend DOMA before the Supreme Court publicly renouncing the law as unconstitutional. Chief Justice Jon Roberts chided the President for placing this burden on the Court to strike down a law the Executive found unconstitutional. Roberts is a Catholic as well as Justices Scalia, Sotomayer, and Alito. Justices are not supposed to be swayed by their own religious convictions. 

Loving v. Virginia, a 1967 Supreme Court decision which struck down State laws prohibiting interracial marriages was raised several times during both days of arguments. Although cases involving race are decided using a higher legal standard than sexual orientation cases, racial justice cases provided the foundation for the gay rights arguments for marriage equality.

Should the Supreme Court strike down DOMA is still must wrestle with whether it should rule on allowing States to each make a determination on legalizing same-sex marriage or determining the issue for the entire country. However, since incremental measured steps seemed the tone of all parties involved, this Supreme Court may leave a national effort for a later day and same-sex marriage to the States.

Gloria J. Browne-Marshall, an Associate Professor of Constitutional Law at John Jay College in New York City, is author of “Race, Law, and American Society: 1607 to Present,” and a legal correspondent covering the U.S. Supreme Court.  


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