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Striking Down DOMA & Prop 8 Inevitable?

by Antoinette Weil
EDGE Media Network Contributor
Sunday Jun 16, 2013

On Monday, the nation was poised and ready to hear whether the Supreme Court of the United States would strike down the Defense of Marriage Act and California's Proposition 8. The ruling could be a landmark win for the gay rights movement, putting the national marriage debate to rest for good. But marriage equality proponents will have to keep on waiting as SCOTUS declined to rule on the high profiled cases on Monday. The decisions are expected to be handed down as early as Thursday, and for gays and straights alike, the anticipation is bubbling.

LGBT and equality organizations are uniformly hopefully optimistic, but no one is calling an all-out win for gay rights. The general consensus seems to be that we'll get something, but maybe not everything.

"We're trying to stay away from reading into what the court will do," said Emily Hecht-McGowan, Director of Public Policy for the Family Equality Council. "It isn't helpful to anyone. But we are hopefully optimistic that the court will strike down DOMA and at a minimum we are hopeful the Court will strike down Prop 8."

Janson Wu, Staff Attorney for Gay and Lesbian Advocates and Defenders echoed this sentiment.

"It's always hard to predict," said Wu. "Last term's decision on the Affordable Care Act surprised everyone, so there's really no telling."

In a perfect world LGBT rights would be the same as those of heterosexuals. In a perfect world, the Supreme Court would say so this Thursday, proclaiming that all marriage is marriage and that DOMA, Prop 8, or any similar law or amendment around the country is unconstitutional. But this is far from a perfect world. Besides the obvious (and seemingly unlikely) options that the Supreme Court could take, either striking down both DOMA and Prop 8 or conversely endorsing both, there are several more subtle avenues that the justices could choose.

Wu asserts that both cases present very straightforward cases of equal protection, but first we'll have to see if the court rules on the merits at all.

Proposition 8, the constitutional amendment in California law that defines marriage as between one man and one woman, was already struck down in lower court by U.S. District Judge Vaughn Walker, who determined that it violated the equal protection clause. As the state of California declined to defend Prop 8, the creators of the bill, a group called, are the ones arguing on the law's behalf. This is uncommon, and as heard in the SCOTUS transcripts, when Justice Kagan asked: "Could the state assign to any citizen the rights to defend a judgment of this kind?", not something that everyone is comfortable with.

DOMA has similar standing questions, which could prevent the justices from getting to the point. President Barack Obama famously made his declaration in support of marriage equality last year and subsequently instructed the Department of Justice not to defend DOMA. As such, a group of House members has stepped in to defend the 1996 measure in place of the executive. Whether they have legal standing to do so, and whether the executive's decision to continue to enforce the law it so assuredly claimed to be unconstitutional, were questions of much debate during the proceedings in March.

Another issue of DOMA the SCOTUS must debate is whether the federal government even has the right to regulate marriage, since unions have traditionally been determined by states. This one is tricky: should SCOTUS decide to strike down DOMA on the grounds that the power to grant, deny and recognize marriage is one held sovereignly by each of the states, then not only would there be no declaration of violation of the measure’s Equal Protection Clause, but it would also leave more room for Proposition 8 to be validated. If the merits of each case are not addressed, they could prove to be a hindrance to one another, each issue’s rationale cancelling out the other’s.

"This could be really bad," said Scott Squillace, Esq. who predicted a narrow ruling. "We could win the battle and lose the war if we don’t remember our roles in the system."

The good news for Prop 8 opponents is that if the Justices do refuse to rule on the merits of the case, by default Prop 8 will be vacated. Not an all-out win for gay rights, but for the couples looking to say their "I-do’s" in California, this would still be something to smile about.

"There’s a great hope we’ll be turning toward equality and there is a lot of positivity," said Dr. Lori Hensic, Director of Educational Affairs for the American Military Partner Association who told EDGE in March about her plans to wed her partner this summer in their home state of California. "There is excitement and trepidation about what millions of outcomes that could take place."

In terms of merits, there was not much in the way of solid legal argument as to why either statute should exist. There was talk of tradition, procreation, experimentation, and uniformity, all of which seemed to be scoffed off by one Justice or another. Justice Elena Kagan, refuting the claim of procreative interests in denying same-sex marriage, asked whether people age 55 and over shouldn’t be allowed to marry. And Justice Ruth Bader Ginsburg made what turned out to be the catch-phrase of the proceedings, noting the difference between a whole marriage and a "skim milk marriage" when talking about the barrier DOMA places on legally married couples.

"I think it is clear that there are five votes to strike down Proposition 8 and Section 3 of DOMA," Erwin Chemerinsky, founding dean of the University of California, Irvine School of Law, wrote for the SCOTUS Blog following oral arguments. "What was most striking to me was how very weak the arguments are for denying gays and lesbians of the right to marry."

Justice Anthony Kennedy, the swing vote, seemed to be leaning toward the liberal justices, and the American majority, in questioning Prop 8 and DOMA’s constitutionality.

"There is immediate legal Injury," Kennedy said during arguments. "There are some 40,000 children in California that live with same-sex parents, and they want their parents to have full recognition and status. The voice of those children is important in this case, don’t you think?"

There is no way to tell how the justices will ultimately vote, but many a speculator has predicted a majority in favor of equality, keeping up with the American public.

According to a newly published Pew Research Study, 51 percent of Americans support legal same-sex marriage. Compared with a mere 20 percent of public support for interracial marriage at the time the Supreme Court stepped in and removed those barriers, the just-majority percentage looks pretty good. But there is another statistic in this poll that is even more striking -- a whopping 72 percent of Americans, stretched across age, race, political affiliation and religion, believe gay marriage to be "inevitable."

Even the SCOTUSblog predicted the death of Prop 8 and DOMA , tweeting during the arguments "#prop8 unlikely to be upheld; either struck down or #scotus won’t decide case" and "#scotus 80% likely to strike down #doma."

We think they’re as good a source as any and we’re ready for the inevitable.


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