Wednesday, March 27, 2013


The Defense of Marriage Act (DOMA) goes to the Supreme Court today.  For those of you who have been in the Delta Quadrant for the last few years, this is the odious law enacted in 1996 and signed by Bill Clinton (who has recently come to regret that decision).  The law defines marriage as a union between one man and one woman and bans the federal benefits of marriage to those couples who do not meet that standard even if marriage equality is legal in the several states.  The specific case being heard today is United States v. Windsor in which a widow has been denied tax benefits resulting from the death of her spouse, who happened to be a woman.

As Sahil Kapur at TPM explains, there are three possible outcomes to today’s hearing:

First, the Court could uphold DOMA by determining that the federal government has a legitimate interest in treating straight and gay couples differently. The would continue the status quo unless and until Congress repeals the law.

Second, the Court could strike down DOMA upon deciding that married same-sex couples are entitled to the same treatment as married opposite-sex couples. That would provide tax and retirement benefits to gay and lesbian couples and let Americans sponsor a gay partner from another country for legal permanent residency.

Third, the Court could conclude that the case lacks standing and send it back to the lower courts for a do-over. The case is unique in that the White House has refused to defend a federal law, leaving the task to House Republicans. If a majority of justices decide that the House majority is not a proper party to defend this, the Court could punt the decision.

As was the case on Prop 8, the likely swing justice is Anthony Kennedy, who has written the Supreme Court’s two key opinions in favor of gay rights. He appeared hesitant Tuesday to impose marriage equality on all states but gay rights advocates are confident that Kennedy will side with them and strike down the Defense of Marriage Act.

We will know the Court’s rulings on both DOMA and Prop 8 by the Fourth of July.

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