DOMA Will Be Overturned: The Question Is How
Even supporters know DOMA is history
March 26, 2013
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."
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.