I must admit I haven’t followed all the intracacies of DOMA etc, so could someone tell me if my brushstroke understanding of this development is correct?
Does this mean that the US courts will hear the two cases, which the federal government will not defend?
If the two cases succeed (which in my limited view would seem more likely if the govt do not defend it) – then would this mean that DOMA would collapse and states would be unable to enforce it?
The cases have already been heard in the district courts and Seciton 3 of DOMA (which is that part preventing any federal recognition of same-sex marriage) has been found unconstitutional by those courts. The Massachusetts case was hear by the court of appeal in May which afirmed the ruling; the Californian case is due to be heard by the court of appeal in September. Until the appals process is exhausted Section 3 of DOMA stays on the statute books and will be enforced.
DOMA is being defended by a group called BLAG, which is the Republican-lead House of Representatives’ legal advisory group. They have already requested that the Supreme Court hear the Mass. case with the aim of getting the current verdict overturned. What’s new is that the Dept. of Justice have also requested that the Supreme Court hear the Mass. case and, more strikingly, that the California case should go direct to the Supreme Court by-passing the court of appeal.
[continued] There was never any guarantee that the Supreme Court would choose to hear these cases, but now that the DoJ have requested that they accept it, it seems much more likely to be heard. In some ways this is a dangerous strategy. The Supreme Court is more conservative than the appeals courts, and four of the nine justices (Roberts, Thomas, Alito and particularly Scalia) can be pretty much guaranteed to support DOMA. It’s all likely to come down to Justice Kennedy’s vote, and that seems far from guaranteed.
The alternative, which now looks less likely, was that the Supreme Court would decline to hear the cases. This would leave the courts of appeals’ rulings as final, though without setting so strong a precedent. That would have been faster as DOMA would cease to be enforced the day the Supreme Court decided not to take the case. It would also be less risky. However, Obama clearly feels the case can be won at the Supreme Court, and a victory there would be far reaching.
[continued] The biggest potential gain from a Supreme Court victory would not necessarily be striking DOMA down, but could be the finding that gay people constitute a “suspect class” – that is, a group, historically subject to discrimination due to an “immutable trait”, and deserving of the highest protection under the Equal Protection clause. Ethnic and religous minorities are currently examples of suspect classes. Sexuality is not currently considered a suspect class, but the current finding of Mass. case, if affirmed in full by the Supreme Court, would change that.
Laws can only treat members of suspect classes differently where there is a “compelling government interest” to do so, where the law is the most “narrowly tailored” and “least restrictive means” of achieving that aim. This is opposed to the normal requirement that the law is merely “rationally related” to a “legitimate government interest”. Granting this heighted protection to gay people would be far reaching indeed.
Hope the hearing is successful and sends a strong message that orientation is an innate and immutable characteristic.
If successful, this albeit risky strategy, could change the face of the US for LGBT people.
Thank you Rich. You really know your stuff.
America is the land of the free and if LGBT people who love each other can not get married then it is time to change the land of the free to land of the oppressed and enslaved, turning the clock back hundreds of years to slavery.
He could have done this at least three years ago. Just saying.
At least he has done it.
Republicans wouldn’t have done it.
I think this is a disgrace. Morals are decaying & Obama is making sure of that by supporting gay marriage. He gets sworn in on a bible and goes directly against its words