Supreme Court questions DOMA's legitimacy

Is it goodbye, DOMA? The High Court may overturn Defense of Marriage Act in June. Photo: Plaintiff Edith Windsor greets supporters after Wednesday's High Court session AP

WASHINGTON, March 28, 2013 — After Thursday’s oral arguments before the Supreme Court, both Court watchers and tea leave-readers think that the 1996 law, Defense of Marriage Act (DOMA), may soon be swept into the dustbin of history.

While a decision won’t be handed down until late June, from hearing the give and take between the bench and the two sides’ lawyers, it became apparent that the federal law defining marriage as a union between a man and a woman could very well be struck down.

And a good thing too. Highly discriminatory, banning federal benefits to same-sex couples married in states that already recognize their marriages, DOMA appears to violate the equal protection clause under the 14th Amendment.

Attorney Paul Clement argues for DOMA before the Court AP

Whether the Court goes that route is a matter of conjecture, but until DOMA is rolled off the backs of gay couples, they are denied federal benefits such as visitation rights in military hospitals and tax preferences that heterosexual married couples have, which is why 83-year-old Edith Windsor filed suit in the first place.

When the woman that Windsor was married to died in New York in 2009 (a state that recognizes same-sex marriages), she inherited her spouse’s property but faced a tax bill from the IRS of $363,053, thanks to DOMA, a tax bill that she would not have had to pay if theirs had been an opposite-sex marriage. Ms. Windsor sued and the U.S. States Court of Appeals for the Second Circuit struck down DOMA, the second time a federal appeals court had done so.

The case then move to the Supreme Court, but the Obama administration refused to support DOMA before the High Court, believing it unconstitutional and thus unworthy of defense. That is when House Republicans under Speaker John Boehner decided to use the House’s legal team to argue in support of DOMA before the Supreme Court.

Hard Questions from the Justices

Justice Anthony Kennedy, often seen as the Court’s swing vote, appeared to agree that DOMA interfered with the states’ traditional right to define marriage. “The question is whether the federal government, under our federalism scheme, has the authority to regulate marriage,” Kennedy said. 

The liberal justices on the Court were even more critical of DOMA with Justice Ruth Bader Ginsburg  saying that the law effectively created “two kinds of marriage: the full marriage, and then this sort of skim milk marriage.” The four liberals questioned the constitutionality of the law, focusing on the Constitution’s equal protection principles rather than on the limits of federal power.

If Kennedy joins the four liberal justices to end DOMA, then federal benefits would be allowed to same-sex married couples in nine states and the District of Columbia, which already allow such marriages.

However, Chief Justice Roberts, whom many had looked to for bold leadership on this issue, seemed super-cautious. Saying that since some states have started to allow same-sex marriage and there’s been a more tolerant cultural shift on the issue, those changes demonstrate that the homosexual community was already a powerful force, entitling them to a lower standard of protection from the Court.

Opponent of gay marriage appears outside Supreme Court AP

Can you imagine telling that to Dr. Martin Luther King, Jr. and the civil rights protesters he led in the Sixties: You are becoming a powerful force and our culture is slowly changing in your favor, so you need less protection from the courts? Truly insulting, Justice Roberts.

Roberts was also irked by the way the case came before the Court, particularly annoyed at the Obama administration for not supporting DOMA before the Court, leaving it to the House Republicans to do so.

Homophobia Underlying DOMA?

Justice Elena Kagan was not afraid to raise the real reason DOMA was passed into law: “Do we really think Congress was doing this for uniformity reasons or do we think the Congress’s judgment was infected by dislike, by animus, by fear?” And she then read from the House record, written at the time the law was passed, which showed the members expressing their desire to show “moral disapproval of homosexuality.”

Trying to predict how the court  will rule in this case and the Prop 8 case on Tuesday is as dicey as reading animal entrails to tell the future in the time of Julius Caesar. But there were some clues scattered over the two days of arguments that give us a window into the justices’ thinking.

As it stands now, Prop 8 will probably be struck down, upholding the Court of Appeals decision, but limiting the ability of same-sex marriage only to the state of California. DOMA will probably be toppled by the Court in a 5-4 decision, with Justice Kennedy once again to the rescue of gay rights. How narrow or broad that decision will be is anyone’s guess at this point.

Those of us looking for a Chief Justice with chutzpah, one with a clear vision of the new America will be disappointed. Justice Roberts’ legacy will continue to be one that is swept away by the tide of history.

To contact Catherine Poe, see above. Her work appears in Ad Lib at the Communities @ She can also be heard on Democrats for America’s Future. She is also a contributor to broadcast, print and online media.

This article is the copyrighted property of the writer and Communities @ Written permission must be obtained before reprint in online or print media. REPRINTING TWTC CONTENT WITHOUT PERMISSION AND/OR PAYMENT IS THEFT AND PUNISHABLE BY LAW.

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Catherine Poe

Catherine was named one of the top Progressives in Maryland along with Senator Barbara Mikulski and Congresswoman Donna Edwards. She has been a guest of President Obama in the Rose Garden.

As past president of Long Island NOW, she worked to reform women's prisons in New York, open the construction trades to women, change laws to safeguard battered women, and protect the rights of rape victims. 

Long active in Democratic politics, she served as the presidentof the Talbot Democrats in Maryland for six years and fought to getthe Health Care Reform bill passed.

Catherine has been published in a diverse range of newspapers and magazines, including Newsday, Star Democrat, Rocky Mountain News, Yellowstone News, and the Massachusetts Review.

If Catherine has learned anything over the years it is that progressive change does not come easily, but in baby steps. 

Contact Catherine Poe


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