The “mess” referred to
below includes: a) the fact that (for
example) a gay couple who is legally married in say MA does not have SS
survivors benefits because of DOMA, b)
whether a gay couple married in one state can have their marriage recognized
in another state.
Prediction: What will the Court do?
1. They could declare that “the equal protection of the laws” principle
of
the 14th amendment prohibits
any restrictions of the rights of persons to marry. This would include disallowing DOMA and
removing from states the right to exclude homosexuals in their definition of
marriage. The conventional wisdom is
that the courts want something less profound than this and that they will not
do this. Nearly impossible.
2. They could declare DOMA unconstitutional and reaffirm the right of states to define marriage, leaving a
mess. Surely
not.
3. They could declare DOMA
unconstitutional and reaffirm the right of states to define marriage. Most likely. Hopefully they would also direct the Federal Government to review its laws
regarding marriage (Social Security et al) and to clean up the mess “with all
deliberate speed”.
4. They could do 3 with the caveat that the
Federal Government can, if it chooses, take to itself the right to define
marriage and revise the laws relating to marriage accordingly. Unlikely.
Two and 3 are my
least favorites.
As much as I hate to remove state’s right and grant them to the Federal government I have to say that I feel marriage contracts, like driver’s license need to be recognized transparently across state borders. In the case of driver’s license the States simply put reciprocal recognition agreements in place. I see no chance of that happening on the marriage issue so I would have to, grudgingly, pick option 4 as my choice.
ReplyDeletePicking option 4 grates on my nerves even further because I usually insist that I want the courts to make decisions based on the law and only on the case at hand, not based on what THEY think is best. I think options 4 falls in the “what they think is best” category. In this case it may match up with what I think is best as well, but I really have to compromise some principles to hope for the Court to rule that way.
I think this is one of those situations similar to getting a mouth full of coffee that is too hot. You have several options on what to do next, but they are all bad.
Signed – Conflicted
p.s. since there were no options listed where SCOTUS upholds DOMA I assume we both agree that is a non starter.