Supreme Court Tilts Toward Ending DOMA

by John M. Curtis
(310) 204-8700

Copyright March 28 2013
All Rights Reserved.                                         

        Two days of heated debate the nine-member conservative-tilting U.S. Supreme Court seems headed toward reversing the Defense of Marriage Act signed into law Sept. 21, 2013 by former President Bill Clinton.  Among the many mucked-up legislative issues that mark the “triangulated” Clinton administration, DOMA takes the cake, considering the Clinton’s liberal leanings on social issues.  From even the most novice Constitutional fan, it’s difficult in the age of equality to ignore the 14th Amendment’s protections of due process and equal protection under the law.  Defining marriage as a union between a man and a woman, DOMA was more about preventing federal benefits and tax breaks than judging gay marriage.  Affecting more than 1,000 federal statutes, DOMA prevents gay couples from collecting Social Security survivor benefits, IRS tax breaks, medical leave, federal health insurance, etc.

             Swing-voting 76-year-old, Reagan-appointee, GOP-friendly Anthony Kennedy has given Court-watchers the best X-ray of where the Court’s heading.  Yesterday’s back-and-forth about California’s Prop 8 hinted that he’s concerned about the children of gay couples feeling like second-class citizens.  Kennedy’s new angle involves how DOMA “intrudes” on the power of the states to recognize same-sex marriages.  Hinting the eventual ruling expected in June, Kennedy used the traditional conservative states rights argument to impeach DOMA.  Believing that DOMA impacts too many states rights, Kennedy opined that the federal law compromises states’ rights to regulate marriage, divorce and child custody.  Looking at the problem backwards, Kennedy steers away from the Court’s role in applying the U.S. Constitution to protect infringements by states on more basic rights.

             With all due respect to Kennedy’s view, the federal courts have an obligation to protect the civil rights of all minorities against local customs and traditions in certain parts of the country that aren’t too tolerant.  Federal laws, notably the Bill of Rights, have been used to protect the rights of former slaves to get due process and equal protection under the law.  Those time-honored concepts—not states rights—were precisely what led the Massachusetts Supreme Judicial Court to ban domestic partnerships in 2004, precisely because it created a separate-but-equal class of citizens unable to marry because of sexual orientation.  Gays and Lesbian parked out in front of the Supreme Court don’t want Kennedy to refer the matter of same-sex marriage back to the states:  They seek nothing short from the High Court to prevent states from discrimination against gays and lesbians.

             Justice Elana Kagan took the words of DOMA right out of the 1996 Congressional record to highlight what’s at stake to DOMA-backer Paul Clement, arguing on behalf of the Republican-controlled House..  Congress wished “to express moral disapproval of homosexuality,” Kagan pointed out, referring to how much public opinion has changed since Clinton signed DOMA into law.  “Does the House report say that?  Of course, the House report says that.  And if that’s enough to invalidate the statute, the you should invalidate the statute,” said Clement, dumbfounded by the blatant discrimination.  Clement wondered whether Congress had any rationale for passing DOMA in 1996, including protecting the federal government’s financial liability that could run into the billions if benefits were paid to gay couples.  Obama’s Solicitor General Donald Verrilli disagreed.

             Answering Clement’s rhetorical question of whether DOMA has any redeeming value, Verrilli put it to the Court.  “I think it’s time for the court to recognize that this discrimination, excluding lawfully married gay and lesbian couples from federal benefits, cannot be reconciled with out fundamental commitment to equal treatment under the law,” Verrilli told the Court.  Long gone are the days when homosexuality was documented in the American Psychiatric Assn.’s Diagnostic and Statistical Manual of Mental Diseases as sexual perversity, now widely accepted as simply an alternative developmental path.  “Why are you so confident in that judgment?  How many states permit gay couples to marry?” asked Verrilli, seeking clarification on whether or not sexual orientation has become a civil right.  Chief Justice John Roberts expressed doubts over the need to protect gays and lesbians.

             Diverting attention to extraneous issues, Roberts suggested the gays and lesbians already protections under current U.S. laws.  “As far as I can tell, political leaders are falling all over themselves to endorse your side of the case,” Roberts told Verrilli, not sure, like fellow conservative Justice Antonin Scalia, why it’s necessary for the Supreme Court to rule specifically on same-sex marriage.  If the Court simply says that parts of DOMA discriminates against gays and lesbians, it would punt the same-sex marriage issue back to the states.  Ruling against DOMA would have far less significance than taking a stand against California’s 2008 Prop 8 that defines marriage as a union between one man and one woman..  If Prop 8’s ruled unconstitutional, it would make comparable statewide measures against federal law, opening the door to gay marriage around the country.

John M. Curtis writes politically neutral commentary analyzing spin in national and global news.  He's editor of OnlineColumnist.com.and author of Dodging the Bullet and Operation Charisma.