Commentary: Is the Court Set to Strike Down DOMA and Prop. 8?

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gay-marriage-badgeI was in Washington, DC, when DOMA was being passed in September of 1996, overwhelmingly by Congress, and immediately President Bill Clinton fought to move the right to outflank conservatives and win re-election.  Only 67 Representatives in the House and 14 in the Senate would vote against it.

A few weeks later I would move to Davis for the first time.  That is nearing 17 years ago, although it does not feel that long.  And yet the world has shifted remarkably on the issue of same-sex marriage.

It was just over four years ago when California passed Prop. 8, and now there is no chance at all it would even come close to passing, according to various polls.

It has been 17 years since DOMA, and at least 21 of the Senators voting for DOMA have now changed their minds.

President Bill Clinton in 1996 said, “I remain opposed to same-sex marriage. I believe marriage is an institution for the union of a man and a woman. This has been my long-standing position, and it is not being reviewed or reconsidered.”

By July of 2009, his view had shifted, “I personally support people doing what they want to do. I think it’s wrong for someone to stop someone else from doing that [gay marriage].” President Clinton said he personally supported same-sex marriage but did not believe it is a “federal question,” stating, “I think all these states that do it should do it.”

Two weeks ago, in an Op-ed in the Washington Post, he wrote, “As the president who signed the act into law, I have come to believe that DOMA is contrary to those principles and, in fact, incompatible with our Constitution.”

“When I signed the bill, I included a statement with the admonition that “enactment of this legislation should not, despite the fierce and at times divisive rhetoric surrounding it, be understood to provide an excuse for discrimination,” he wrote.  “Reading those words today, I know now that, even worse than providing an excuse for discrimination, the law is itself discriminatory. It should be overturned.”

US Solicitor General Donald Verrilli, Jr, pointed out, “I think it’s time for the court to recognize that this discrimination, excluding lawfully married gay and lesbian couples from federal benefits, cannot be reconciled with our fundamental commitment to equal treatment under law.”

The only real question seems to be how far that Justice Anthony Kennedy is willing to go, both on DOMA and Proposition 8.

Just as was the case on Tuesday, Justice Anthony Kennedy on Wednesday gave hints as to where he was going.  He said that the federal government should respect “the historic commitment of marriage, and of questions of the rights of children, to the states.”

The New York Times writes, “That suggests that he is prepared to vote with the court’s four liberal members to strike down the part of the 1996 law that recognizes only the marriages of opposite-sex couples for more than 1,000 federal laws and programs. Such a ruling would deliver federal benefits to married same-sex couples in the nine states, and the District of Columbia, that allow such unions.”

If the 1996 law stands, Justice Kennedy said, “You are at real risk with running in conflict with what has always been thought to be the essence” of state power, which he said was to regulate marriage, divorce and custody.

As the New York Times noted, he questioned the constitutionality of DOMA but also expressed skepticism that the court should issue a broad ruling in the Prop. 8 matter that could become the vehicle for a national right to same-sex marriage.

The question at this time is how far, not the court, but one man, is willing to go.

In an analysis in today’s New York Times, they write, “Momentum in the political world for gay rights could actually limit momentum in the legal world. While the court may throw out a federal law defining marriage as the union of a man and a woman, the justices signaled over two days of arguments that they might not feel compelled to intervene further, since the democratic process seems to be playing out on its own, state by state, elected official by elected official.”

“The prospect that gay rights advocates may become a victim of their own political success was underscored during arguments on Wednesday over the constitutionality of the Defense of Marriage Act. Opponents of the law were left to make the paradoxical argument that the nation has come to accept that gay men and lesbians deserve the same right to marriage as heterosexuals while maintaining that they are a politically oppressed class deserving the protection of the courts,” the analysis continued.

“No other group in recent history has been subjected to popular referenda to take away rights that have already been given or exclude those rights, the way gay people have,” attorney Roberta Kaplan said on Wednesday.

But the New York Times notes, “Even so, the rapidly changing political environment gives the justices a reason – should they want one – to sidestep imposing a national standard and leave the matter to the states.”

“While framing its decisions on law and principle, the court has always been attuned to public opinion and periodically debates how much evolving national mores ought to influence the interpretation of a two-century-old Constitution,” the Times continued.  “In the case of same-sex marriage, the political currents have shifted so quickly that the justices seem wary of jumping into the rapids.”

It seems Justice Kennedy is ready to strike down the law, but where he goes with it, no one really knows.

An article in the Washington Post today says, “It appeared Kennedy’s interest in states’ rights might align with the concerns of the court’s four liberals that the law impermissibly targeted gay couples.”

The New York Times editorial today notes, “Justice Kennedy, however, seemed primarily interested in questioning the law for the wrong reasons, concerned that the Defense of Marriage Act interferes in the primary right of states to regulate marriage and its benefits. Only the four more liberal justices appeared to focus on the reality that what is at stake here is not federalism but fairness.”

Perhaps the most remarkable thing about all of this, however, is that one of the most conservative Supreme Courts we have seen, at least in the five-person voting majority bloc of justices, is poised to strike this down, narrowly, on a 5-4 vote.

In California, that means that once again same-sex couples will have the right to marry.  It also means that, given the composition of the legislature and the shifting views of the electorate, there is virtually no way a ban would ever be reinstated.

Just over four years ago that seemed to be a far-off fantasy, and yet we may be just three months shy of that happening.

—David M. Greenwald reporting

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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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20 thoughts on “Commentary: Is the Court Set to Strike Down DOMA and Prop. 8?”

  1. wdf1

    [i]”When I signed the bill, I included a statement with the admonition that “enactment of this legislation should not, despite the fierce and at times divisive rhetoric surrounding it, be understood to provide an excuse for discrimination,” he wrote. “Reading those words today, I know now that, even worse than providing an excuse for discrimination, the law is itself discriminatory. It should be overturned.”[/i]

    salon.com, 3/28/13: In Supreme Court, anti-gay movement is humiliated ([url]http://www.salon.com/2013/03/28/in_supreme_court_anti_gay_movement_was_humiliated/[/url])

    At the Supreme Court hearing, Elena Kagan, the newest justice, read from the House Report from Congress when it passed the law in 1996, which summarized DOMA’s entire legal underpinning: “Congress decided to reflect and honor a collective moral judgment and to express moral disapproval of homosexuality.”
    ….
    Paul Clement, who was appointed by the House to defend the law President Obama won’t, responded to Kagan, “Sure, the House Report says some things that we are not — we’ve never invoked in trying to defend the statute.” In other words, Clement and the House saw no purchase in trying to defend the, well, original intent of the law.[/i]

  2. Growth Izzue

    So Clinton signed the bill but its allright with his following as he only did it because “when DOMA was being passed in September of 1996, overwhelmingly by Congress, and immediately President Bill Clinton fought to move the right to outflank conservatives and win re-election?”

  3. David M. Greenwald

    What makes you think it was alright? Clinton sold out on a number of issues following 1994, the point I was making was how far things have shifted, the four biggest Democratic names have all shifted their views on this issue this year going from opposition to same-sex marriage to support. But they were not leaders, they were followers.

  4. Growth Izzue

    “But they were not leaders, they were followers.”

    Thank you, they only changed because of the political climate, polls and Hillary setting herself up to run in 2016. Total hypocrites. Why didn’t you just say that Clinton signed DOMA? It seemed you had to make excuses for him as to why he did it?

  5. David M. Greenwald

    Because in my view the initial rationale by Clinton was political and the shift in his view is probably more in line with his actually thinking. but either way, the point of it was to show how the overall climate has shifted in just two decades from a point where politicians were scared to support gay marriage to a point where they feel safe in coming out in favor of it.

  6. Growth Izzue

    “Because in my view the initial rationale by Clinton was political and the shift in his view is probably more in line with his actually thinking.”

    Or maybe initially he signed it because that’s how he really feels but changed his response because he knows his wife will be running for president.

  7. Growth Izzue

    “I think the other is more likely.”

    You don’t know that, but I know you would like to think that because that keeps with the blind adulation that Democrats have with Clinton. If Clinton really felt that way did he wait 8 years after he was out of office for him to come out with as you say “his actual thinking”.

  8. David M. Greenwald

    You’re right, I don’t know if, hence my statement was “I think.” I do have reason to believe it based on what I was told at the time when I worked in DC. But I do think a lot of thinking on this subject has evolved over time, so I’m not going to say that Clinton has the same beliefs today as he did 17 years ago.

  9. Frankly

    Dem politicians flop like soggy pancakes on the political griddle. But Dems love their politicians so much it never matters to them. That would be fine if they ignored the same from GOP politicians, but they don’t.

  10. David M. Greenwald

    Actually for me it’s the opposite. After W. Bush, I decided no matter how much I dislike Democratic politicians, I have little choice.

  11. davisite2

    “The question at this time is how far, not the court, but one man, is willing to go”

    California-nurtured Justice Kennedy is steeped in the populism and Libertarianism of the US western states, quite unlike the Supremes who hail from the North East, by birth and/ or schooling. I would not be surprised if he finds it hard to swallow the denial of the Prop 8 popular will in the manner that it has been done.

  12. David M. Greenwald

    “I would not be surprised if he finds it hard to swallow the denial of the Prop 8 popular will in the manner that it has been done.”

    Have you seen the latest polling on the subject? Almost 70% of Californians now support legalized same-sex marriage. Prop 8 was four years ago and the world has drastically changed since then.

  13. davisite2

    “Almost 70% of Californians now support legalized same-sex marriage…”

    Under CA law, Prop 8 was a legitimate part of the CA constitution. The Supreme Court(and Obama) appear to support letting the states work out this issue within their own state processes. The “tortured” intervention of the Fed ninth district court and attorney-general Brown’s decision to not defend the CA constitution because HE believes that Prop 8 violates the US constitution is a gross violation of that office. This was not his decision to make but rather the Federal Courts. The correct process at this time would be to hold another referendum(which you feel is a slam-dunk win) to remove the current legitimate contitutional amendment that defines “marriage” as between a man and a woman.

  14. davisite2

    “popular will” expressed legitimately by a vote of the people. This has been a fundamental principle with regard to the CA constitution brought about during the era of a corrupt CA Supreme Court,”bought” by the railroad barons of that day. The recent CA Supreme Court, in accepting Prop 8 as a legitimate amendment to the CA constitution, well understood the importance of this populist principle to CA.

  15. AdRemmer

    Funny thing about polls, CA prop 8 opponents fell for the overstating & North Carolina people didn’t foresee 35% of democrats voting in favor of the ban, last yr.hmmm

  16. davisite2

    ” H. W. Perry Jr., a law professor at the University of Texas, “it is a case that allows a lot of exit points.” The one that seemed most attractive to a majority of the justices on Tuesday was that supporters of Proposition 8 did not have standing to appeal from a decision entered against state officials. A dismissal on standing grounds could lead to some messy follow-on litigation in California but will probably effectively allow same-sex marriages there. “

    AdRemmer…. from today’s New York Times. I trust this is of some interest to you as you sought some info on the possibility/probability of this case being dismissed for lack of standing.

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