DOMA Will Be Overturned: The Question Is How

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While the Proposition 8 odd couple of Ted Olson and David Boies has garnered media attention for bringing together the attorneys on opposite sides of Bush v. Gore, it's the Defense of Marriage Act (DOMA) case of Windsor v. United States that has truly united great minds from across the spectrum of legal philosophies. The question at this point is what rationale the Supreme Court will choose to remove this barrier to federal recognition for legally married same-sex couples.

Judicial conservatives tend to favor a federalist argument, while liberals prefer to hang their hopes on a 14th Amendment "equal protection" challenge. Judge Michael McConnell, who by all accounts was on President George W. Bush's short list for nomination to the Supreme Court, recently wrote in The Wall Street Journal that "[t]he leading argument against DOMA all along has been that the federal government lacks authority under the Constitution to create and enforce a definition of marriage different from that of the state in which a couple resides. It is hard to think of an issue more clearly reserved to state law under constitutional tradition than the definition of marriage."

[See a collection of political cartoons on gay marriage.]

His equally respected philosophical opposite, constitutional law professor Erwin Chemerinsky argues instead that, "it is the judicial role to interpret the Due Process and Equal Protection Clauses of the Constitution and to remedy unjust discrimination and violations of fundamental rights. Because laws that prohibit same-sex marriage discriminate in violation of the Equal Protection Clause and infringe a long-recognized fundamental right, it is the duty of the judiciary to strike down laws denying marriage equality to gays and lesbians."

Both arguments are true, and either could be persuasive to a majority of the Court, particularly given how much the world has changed since DOMA passed.

DOMA has been repudiated both by its author, former Congressman Bob Barr (R-GA), and by the president who signed it into law, Bill Clinton. Even the National Organization for Marriage's own Maggie Gallagher, when she's being honest, predicts that "Kennedy will overturn DOMA (perhaps joined by Roberts)." Whatever one's perspective or politics, DOMA is simply too flawed to survive legal scrutiny.

Most observers predict a 5–4 decision, but I wouldn't be surprised to see a split opinion, with conservative justices penning a concurrence that better suits their philosophy. However they get there, the ultimate result is not in doubt: DOMA will fall, and the American family will be stronger for it.

Casey Pick

About Casey Pick Policy Fellow with the National LGBT Bar Association

Tags
civil rights
LGBT rights
marriage
Supreme Court

Other Arguments

#1
36 Pts
DOMA Helps No One, While Harming Many

Yes – DOMA Helps No One, While Harming Many

Evan Wolfson Founder and President of Freedom to Marry

#3
28 Pts
Unelected Supreme Court Shouldn't Impose Gay Marriage by Fiat

No – Unelected Supreme Court Shouldn't Impose Gay Marriage by Fiat

Penny Nance President and CEO of Concerned Women for America

#4
21 Pts
Same-Sex Couples Deserve Equal Protection Under the Law

Yes – Same-Sex Couples Deserve Equal Protection Under the Law

Chad Griffin President of the Human Rights Campaign

#5
15 Pts
The Undue Hardship Caused by DOMA Is Unconstitutional

Yes – The Undue Hardship Caused by DOMA Is Unconstitutional

Stacey Long Director of Public Policy and Government Affairs at the National Gay and Lesbian Task Force

#6
8 Pts
The Supreme Court Can't Unilaterally Change the Definition of Marriage

No – The Supreme Court Can't Unilaterally Change the Definition of Marriage

Chris Gacek Senior Fellow at the Family Research Council

#7
-28 Pts
No, Redefining Marriage Isn't Mandated by the Due Process Clause

No – No, Redefining Marriage Isn't Mandated by the Due Process Clause

John C. Eastman Chairman of the Board of the National Organization for Marriage

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