Thoughts on the DOMA and Prop 8 Cases

This is marriage equality week at the Supreme Court: the Court hears arguments on Prop 8 on Tuesday, and on DOMA Section 3 on Wednesday.

I’ve been paying lots of attention to these cases, of course. Matt and I are getting married this year, so we will be directly, concretely affected by the DOMA decision. In fact, I can’t think of another Supreme Court case during my lifetime that has had the potential to affect me so concretely and directly.¬†Lawrence v. Texas¬†affected me symbolically as a gay person, but it didn’t affect me directly, since I already lived in a state where gay sex was legal. This is different. It’s a weird, cool feeling.

It’s interesting that depending on where you live, you may be paying more attention to one case than the other. Gay Californians are likely paying more close attention to the Prop 8 case, although they are the only ones who will likely be affected by both the Prop 8 and DOMA cases.

I don’t think the Court is going to issue a broad, nationwide right to marriage equality. It has never overturned so many state laws at the same time. Roe v. Wade overturned at least 30 states’ laws on abortion; Loving v. Virginia overturned 16 states’ laws banning interracial marriage; Lawrence v. Texas overturned 14 states’ laws banning sodomy. Currently 41 states ban same-sex marriage.

It’s too early to tell what the Court will decide at the end of June, since we haven’t even had the oral arguments yet. But it seems most likely that the Court will get past the standing issue in DOMA (there’s an issue over whether the parties have proper standing before the Court in the first place, but I don’t think it will be a problem) and overturn it on federalism grounds. If the Court can get past the standing issue in the Prop 8 standing issue, I think it will find a way to strike down Prop 8 without affecting any other states.

No matter what happens, though, marriage equality is coming to California. If the Court upholds Prop 8, California will probably hold another referendum in 2016. (I don’t think marriage proponents would risk a referendum in 2014 — midterms are when all the crazies come out.)

And it’s coming to every other state, too. As Frank Bruni points out today, and as many others have said, and as the polls show, things are moving in one direction, and one direction only. This isn’t like abortion, where people argue over whether it’s murder. More and more people are seeing that letting two competent adults decide to get married hurts absolutely nobody. Not only is public opinion chaning; it’s changing quickly, as all the arguments against it fall apart like so many paper tigers.

In that case, why would the Supreme Court be so reluctant to overturn so many state laws at once? Because the Court cares about its reputation. The three or four conservative activists have no problem angering the public by twisting the law to overturn democratic decisions (see Citizens United, Obamacare, gun regulation, Bush v. Gore). But the others, despite what they might feel personally, do have qualms.

So I think we’ll see halfway, moderate, but hugely important decision in favor of more equality in this country rather than less. At least five, maybe six justices. Maybe even seven. (Or even eight – I could see Thomas being offended by DOMA on federalism grounds. Scalia will be a holdout no matter what.)

But that comes in June. This week are the oral arguments. Tuesday and Wednesday will be fascinating.

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