The High Court Poised to Take On the Defense of Marriage Act
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John M. Burns
The U.S. Supreme Court reconvened last week for its new term and the court is expected to hear several major cases from affirmative action to voting rights, among other high-stakes cases. Perhaps the most highly anticipated cases, however, involve gay marriage and a challenge to the Defense of Marriage Act ("DOMA"). Indeed, when speaking at the University of Colorado at Boulder three weeks ago, Justice Ruth Bader Ginsburg spoke candidly, and confirmed that DOMA would most likely come "before the court toward the end of the current term." Such an affirmation from such a senior judge on the High Court comes as a welcomed acknowledgement for many gay-rights proponents whose fight for equal rights hinges in part on the repeal of DOMA.
The DOMA, which was passed by congress and signed into law by President Clinton in 1996, defines marriage as the legal union of one man and one woman and provides that no U.S. state is required to recognize a same-sex marriage from another state. Since the act has been passed, several states – including Massachusetts, New York and Iowa -- have legalized same-sex marriage with key states -- including Maryland, Maine and Washington -- considering marriage equality this November. Last summer, Bush pollster Jan van Lohuizen and Democratic pollster Joel Benenson outlined in a memo the change of public opinion in support for marriage equality. Their analysis confirms public opinion is shifting: more Americans support marriage equality today than oppose it and that's true across all demographics regardless of party affiliations or religious backgrounds.
Unfortunately, public opinion is at odds with current law. Here is where the rubber meets the road: Section three of the DOMA is at the core of the majority of the disputes, the highly controversial section codifies the non-recognition of same-sex marriages for all federal purposes, including insurance benefits for government employees, Social Security survivors' benefits and the filing of joint tax returns. Accordingly, numerous plaintiffs have challenged DOMA on the grounds that it denies critical federal benefits. In fact, section three of DOMA has been found unconstitutional in seven federal courts and five of those cases are awaiting a response for review from the U.S. Supreme Court. Accordingly, Justice Ginsburg's recent acknowledgement that the court will address DOMA in short order is welcomed news to same-sex marriage supporters who are frustrated with the clear jurisdictional divide and lack of uniformity. Indeed, this inconsistency presents a practical need for the Supreme Court decision as there are conflicting decisions on DOMA's constitutionality in various federal courts and additional challenges are pending. Consider the splitting of hairs by the Obama administration: On the one hand, the administration announced they will not defend the law in court, but is still enforcing it, resulting in more lawsuits filed against DOMA.
The High Court is expected to announce its decision whether to hear this case in the next few days. If it proceeds with the hearings, the case is expected to take place sometime in the next year and early indications suggest that the Supreme Court will most likely strike down section three of the DOMA. Not surprisingly, the case will most likely come down to the usual ideological split with the four liberals (Ginsberg, Breyer, Kagan and Sotomayor), most likely striking down the law, and the four conservatives (Roberts, Scalia Alito, Thomas), most likely seeking to uphold it. Thus, leaving the deciding vote in the hands of Justice Anthony Kennedy, whose powerful opinions in the landmark gay rights cases Romer vs. Evans and Lawrence vs. Texas suggest that he would most likely vote against the DOMA.
If the DOMA is struck down, the High Court's decision will certainly provide precedential effect in resolving future disputes involving equal rights for same sex couples. And while any victory before the High Court will resound across jurisdictions, the fight for progress on the marriage rights front for same-sex couples will continue to face challenges, especially considering the economic and political undertones that underscore this issue. Nonetheless, like civil-rights struggles of prior years, each victory serves as a vital building block and if the Supreme Court votes to strike down the DOMA, it will surely serve as a pivotal step in ensuring that same-sex marriage becomes a mainstream value in America.
