“DOMA is in trouble” (quick read of Supreme Court arguments today)

The Supreme Court’s DOMA oral arguments are over, and the quick read from the pundits is that the Defense of Marriage Act (DOMA) is in danger.

CNN’s Jeffrey Toobin agreed that Justice Kennedy seemed disturbed about DOMA inmpinging on the powers of the states, and that “DOMA is in trouble.” Here are a few more instant reactions:





Plaintiff Edie Windsor, moments ago at the Supreme Court






Follow me on Twitter: @aravosis | @americablog | @americabloggay | Facebook | Instagram | Google+ | LinkedIn. John Aravosis is the Executive Editor of AMERICAblog, which he founded in 2004. He has a joint law degree (JD) and masters in Foreign Service from Georgetown; and has worked in the US Senate, World Bank, Children's Defense Fund, the United Nations Development Programme, and as a stringer for the Economist. He is a frequent TV pundit, having appeared on the O'Reilly Factor, Hardball, World News Tonight, Nightline, AM Joy & Reliable Sources, among others. John lives in Washington, DC. .

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27 Responses to ““DOMA is in trouble” (quick read of Supreme Court arguments today)”

  1. AdmNaismith says:

    True, as much as the Court has been issuing such narrow rulings for the past 20 yrs or so, they could not grant Windsor something without ruling something a little more substantial.

  2. Bill_Perdue says:

    The Clintons, Obama. most Republicans and lots of democrats agree with the ‘states rights’ tradition originated most notably by Jefferson Davis and George Wallace. It’s a crock.

  3. Bill_Perdue says:

    He may or may not have convictions and ethics.

    Politicians are large vats of fetid merde into which the rich pour money, creating even more corruption and more of a stench. Honestly, it matters little what their convictions really are – their decades of support for DOMA and their refusal (in action- nothing else counts) are proof positive that Obama and the Clinton’s are functional bigots.

  4. On what basis could they do that ?

  5. BeccaM says:

    Good point there. Then there are issues of child custody and so on.

    Seems quite likely SCOTUS is digging itself into a quagmire on this, and simply guaranteeing they’ll get a whole slew of cases across the coming decade or two.

  6. rerutled says:

    No, I don’t think so, because a victory under Equal Protection would moot the full faith and credit challenge (since, if Marriage Equality is secured by Equal Protection, then every state must grant marriage licenses to same-sex couples), but a full-faith-and-credit victory would *not* moot an Equal Protection challenge (because a state can recognize licenses given in other states without granting such licenses themselves — in fact, this was the situation in New York for a few years). Thus, an Equal Protection victory is better than a Full-Faith-and-Credit Victory.

    Even so, the FFaC victory will probably happen first, because it’s legally low-hanging fruit.

  7. MichaelS says:

    The better case will be for the married couple from New York who moves to another state that refuses to recognize New York’s marriage — setting up a full faith and credit challenge.

  8. nicho says:

    If true, then if the Supreme Court is going to change who can get a marriage license in Idaho,

    What’s more at issue is whether Idaho has to recognize marriages that are legal in other states — as they do with heterosexual marriages. Some states, for example, won’t issue licenses to someone who is under a certain age or who is within certain degrees of kinship. No one tells them they have to, but they do have to recognize marriages performed in states that do allow it. They should do no less for gay people. Personally, I don’t care if I can get married in Idaho, Mississippi, or North Dakota — as long as those states recognize me as married because I’m married in CA.

  9. MichaelS says:

    That’s why I think the full faith and credit angle is so much more powerful – having nothing to do with discrimination or other protections against disadvantaged minorities that conservative justices might be loath to embrace. Full faith and credit goes to exceedingly clear terms in the Constitution obligating all states to honor one another’s contracts. Otherwise, interstate commerce couldn’t happen, and general chaos would ensue — a legally incorporated Delaware corporation could be considered invalid in Vermont.

    Same thing here… marriage is a state contract between two individuals. And now the same chaos reigns — If a legally married couple moves to Virginia, suddenly they’re no longer married? Back when many states outlawed divorce, couples who got divorced in Nevada knew their home states had to recognize that divorce, no matter how hostile their state was to the practice. Simple contract and constitutional law. A much stronger case, I believe, than the discrimination argument — and shocked that no one has made it.

  10. nicho says:

    Or worse still. if they wish to divorce. Most states have a residency period to apply for a divorce. So, if someone from Mississippi marries in CA (which doesn’t require residency) and then later want to divorce, one of the parties will have to set up residency in a state that recognizes same-sex marriage — since Mississippi can’t dissolve what it doesn’t recognize. For many people, that’s economically and practically impossible. It would be exacerbated if it were a contested divorce, since the reluctant party could put all sorts of roadblocks in the way.

  11. MyrddinWilt says:

    Me too, if they kick out DOMA then that is the main thing. Better if they give more, but with DOMA gone it is only a matter of time before states are obliged to recognize out of state marriages under the 14th amendment and the full faith and credit clause.

    Big question seems to be whether Kennedy ducks the question claiming lack of jurisdiction. Like the GOP Judges never seem to do when it is giving corporations something.

  12. BeccaM says:

    As I said above, federal recognition alone, if universal for all citizens regardless which state they live in, would be a huge step forward. You’re right, at that point it opens the door for those living in states where same-sex marriage is banned to file lawsuits.

    As for full faith and credit…well, from the reports I’ve been reading, they couldn’t even get the justices to address equal protection and due process, much less heightened scrutiny concerns. Apparently Roberts even brought up the “gays have political clout now, so we don’t need to get involved” canard.

  13. lynchie says:

    His convictions have been bought and paid for since he declared he was a fan of Ronnie Raygun.

  14. rerutled says:

    I agree with your evaluation. They look ready to overturn DOMA on the jurisdictional issue, and they won’t discuss the “Equal Protection” issue, and that they will likely not get to Equal Protection in the PropH8 trial either. I think this is the justices view of conservativism: not ruling on issues of law unless it is demanded by the question posed, and in both cases, they can avoid ruling on “Equal Protection”. If true, then if the Supreme Court is going to change who can get a marriage license in Idaho, they are going to have to be presented with a same-sex couple who applied for a marriage license in Idaho, and were denied, and then given the question: doesn’t the 14th Amendment insist that the couple have access to a marriage license?

    A group who is setting up such a conflict is The Campaign for Southern Equality: they send couples into county clerk offices to request the marriage license, and they are then turned down.

    Based on the (rightly) pessimistic view that the Supreme Court won’t extend rights to all 50 states — but, my fingers are crossed — then Marriage Equality will only come about from separate confrontations, one of which demands 14th Amendment consideration.

  15. MichaelS says:

    If that’s the ruling, I’ll take. Then the next lawsuit comes from a same-sex couple in NY who moves to Virginia, and the full faith and credit clause will force their hand there. I’m surprised no one on either side has mentioned it yet in any of these proceedings.

  16. BeccaM says:

    Yeah, which from Kennedy’s questions during the oral arguments appears to be by design.

    A growing majority of the country is ready for marriage equality, but not the Supreme Court, at least four of whom still feel that being gay is a moral flaw and not a normal condition of human biology.

  17. karmanot says:

    When all is said and done, it will be back to States right to bigotry.

  18. MichaelS says:

    Unfortunately, our President has **NOT** helped our case, all the progressive happy-talk to the contrary. I have been furious from the start that he even bothered appealing the lower court’s ruling, and moreover that he continues to enforce a law he himself believes and declares is unconstitutional, and both Kennedy & Roberts picked up on it:

    Roberts also wondered why, if President Barack Obama believes DOMA is unconstitutional, he continues to enforce it. “I don’t see why he doesn’t have the courage of his convictions,” the chief said. Kennedy chimed in later, saying he didn’t “understand why they continue to enforce” DOMA.”

    One has to wonder… if Congress passed a law saying that African-Americans were not allowed to attend school or to vote, does anyone believe for one minute that Obama would continue to enforce that law while he appealed to SCOTUS?

    sigh… The honest answer is that Obama doesn’t have the courage of his convictions. Or maybe he has no convictions. Nonetheless, the cowardice is transparent and was on full display today in the Court.

  19. Randy Riddle says:

    And that’s why this will be dragging out in repeated cases to the Supreme Court for years.

  20. AdmNaismith says:

    Strike it down, really? The whole thing?
    My immediate reading was that they would allow Edie Windsor her tax refund and let everyone esle hang, while not doing a thing about DOMA itself.

  21. Butch1 says:

    They better get to recognizing it on a national level, let these backward states try and explain why they still need to discriminate when they are brought to task for their discriminating against gays in their own state.

  22. BeccaM says:

    Biggest question of all: Will gay and lesbian couples be free to go get married in states that allow it, but live in a state that doesn’t, and still receive federal recognition. (Not an ideal situation, but would still be a huge step forward.)

    And what happens for these couples when they’re involved with a federally-mandated program, such as Medicaid, which is run by the states?

  23. BeccaM says:

    DOMA itself looks to be in trouble, but only from a ‘states rights’ point of view. According to the same reports, the DoJ attorneys made no headway on either the equal protection or the overt discrimination arguments. In other words, Kennedy looks like he’s trying to find a way to ensure that states are free to keep their discriminatory anti-gay laws.

    So if this goes as is being predicted now:

    – PropH8 struck down based on Walker’s original ruling, the 9th Circuit ruling is vacated due to lack of standing for the proponents. Basis will be that it is a state’s prerogative to decide how much and how far it will choose to defend voter initiatives. California’s elected governor and AG decided to accept Walker’s ruling, period. Affects California only.

    – DOMA struck down solely on the basis that marriage is up to the states to define.

    Common thread: States rights. There is no avoiding it. Kennedy clearly wants DOMA gone, but he won’t get on board with the idea that there Constitutionally-protected right for gay and lesbian couples to marry.

    Open questions: Will this really mean that the Feds must recognize all legally enacted same-sex marriages? How will separate-but-unequal civil unions and domestic partnerships be dealt with?

    And what is the status of couples who get married in a marriage-equality state but live in or move to a state that bans it? Does that mean they get federal recognition, but not state?

  24. Bill_Perdue says:

    Another repudiation of the Clinton’s legacy of bigotry, union busting and wars of aggression in the making.

  25. Randy Riddle says:

    Seeing how this can often be about politics within the court – and a consciousness about the public perception of the court – I’m willing to be they’ll “split the difference” between the two cases. The Prop 8 case they’ll toss back to California, basically making the option for civil unions and gay marriages being with the states (for now). And they’ll strike down DOMA, basically saying that if you’re gay married in a state that allows it, you’re eligible for all the rights Fed law gives you as a spouse.

    Or they’ll just chicken out on both cases and we’ll be going through this all over again in a year or two.

  26. I think we’re gonna get burned. We’re gonna get roasted like nuts. (I’m quite prepared to be pleasantly surprised, however.)

  27. Joneses says:

    Prayer be almighty, although I have my reservations. Kennedy seems to be the one to side with overturn and repeal for prop 8. The Non-Christian asswipes are very much threatening the five Justices as I speak.

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