The week of dithering by the Supreme Court was, to me, way more fascinating than the ultimate decision to take the cases on marriage equality. For a minute there, it really looked as if they were going to avoid the whole thing, which in itself would have been a pretty resounding win for the forces for marriage equality.
I also used to say, years ago, that DOMA was doomed once gays had the right to marry, for one of two reasons, divorces or taxes. The public may not like gays or disapprove of our life choices... but taxes and divorce are legal matters that need clear standards. And here we are, where the Supreme Court is hearing a tax case that will likely eviscerate DOMA.
That case is about a couple who got married in Canada where the surviving partner faced a huge tax bill (er, "death tax"? anyone?) where spouses are normally exempt. That case, as I long suspected, is probably a slam dunk on the merits, but like the Prop 8 case, the complication here is that the Supreme Court may never have to decide the underlying issue, because the appeal is being brought by Republicans in Congress. The Obama Administration, if we'll recall, already announced that based on other decisions where DOMA was ruled unconstitutional, the Solicitor General does not defend DOMA anymore. That, in itself, is an interesting question without a lot of settled law - if the Executive Branch refuses to defend a law it doesn't like, does Congress have the ability to do that instead? And again, that decision, even one in favor of Congress, wouldn't necessarily help DOMA - it's easy to see a split verdict that says, oh 7-2 (Breyer, Sotomayor) or 6-3 (plus Ginsburg) that Congress can appeal a decision of a law they passed, but then says 5-4 (the liberals, plus Kennedy) or 6-3 (plus Roberts) that DOMA violates the 14th Amendment.
The Prop 8 case is even messier, since the State of California "lost" the original case. In fact California (under Jerry Brown) never wanted to defend Prop 8, but sent a team of the Proposition's supporters as their stand-ins, who promptly lost. The appeal of the case comes from those proponents of the originial proposition, and it is indeed unclear whether they have any right to appeal a decision that is actually aimed at the state. This is where the Supreme Court could rule that the appeal should never have happened... meaning the original ruling against Prop 8 would stand; or they could give the proponents standing, and overrule the 9th Circuit and the District Court.... or they could uphold all the decisions.
This, too, leads to intersting questions about standing... but I have a hunch that the Court would be happy not to rule on Prop 8 and try to fight what does indeed seem to be a turning tide of supprt for gay people. What seems even clearer, as I joked before, is that the "one man, one woman" nonsense will most likely be relegated to some spirited dissenting opinion from Scalia or Alito.
And though many Court watchers brought up less than salient examples of Brown vs. Board of Education and Roe vs. Wade, the real bellweather on this will be Loving vs. Virginia, the 1967 case that ended state bans on interracial marriages, and (my guess) Heart of Atlanta Motel vs. United States. Loving, of course, says that states can't just refuse couples the right to marry... but Heart of Atlanta is a big case on interstate commerce, that people can cross state lines and expect similar treatment. My guess is that the combination of the two is where gay marriage will, one day if not this day, wind up being upheld.
But of course, gay people could lose all of this. The right wing might prevail, and at least claim a narrow victory that would extend this fight for a few years more. As much as I think some people are deeply invested in winning, I don't know that a lot of gay people - certainly around my age or older - harbor a lot of illusions here. This could all go very badly, and if it does, we'll just have to start our work from wherever we end up. But the reason we can live with the bad outcome, as we have all along, is because marriage equality is simply common sense. And it may take the law a while to catch up to common sense... but I don't think it will be much longer.
Comments