The Supreme Court case on the Defense of Marriage Act is approaching its end. In this case, Edith Windsor challenged the Defense of Marriage Act, saying that the federal government taxed her excessively because it did not recognize her same-sex marriage. On March 27, the official SCOTUSBlog twitter account came out with this tweet:
As the court's term comes to a close, let’s examine the different positions that the justices may take.
1. The justices may decide that DOMA complies with the Fifth Amendment. The Fifth Amendment says: “No person shall… be deprived of life, liberty, or property, without due process of law.” The Supreme Court has historically interpreted the phrase “due process” in a number of widely different ways because the phrase is so ambiguous. Using this clause, the Supreme Court may argue that marriage is not a right that is “due” to anyone, and does not need to be protected by the government. Thus the government can withhold any properties or privileges attained through marriage, and still comply with the phrase “due process.”
2. The justices may decide that DOMA violates the Fifth Amendment. Alternatively, the Supreme Court can just as easily argue that marriage is a right extended to all citizens under the due process clause. And so, forbidding same-sex marriage and withholding the benefits attached to it would qualify as depriving people of life, liberty, and/or property without due process. Specifically, in the case of Ms. Windsor, the government deprived her of $365,000 without the rights that were “due” to her.
3. The justices may decide that the petitioners (in this case, the GOP) do not have the standing to argue regarding the constitutionality of DOMA. Obama’s administration had refused to defend DOMA in court because Obama believes that DOMA is unconstitutional. Because the executive branch refused to defend DOMA in court, the GOP stepped in to do so. Vicki Jackson (a Harvard Law professor appointed by the SCOTUS) argued that the GOP has no direct ties to the money contested by Ms. Windsor, and thus does not have the standing to argue this case.
It is unlikely that the justices would rule this way, because when Ms. Jackson presented this argument, the justices were very skeptical about it. They criticized the Obama administration for being inconsistent, saying that he refused to defend DOMA in court, and yet he went and enforced it anyway. Also, the judicial branch of government is given the authority of deciding the constitutionality of a law. If the Supreme Court could not judge any law that the executive branch deemed unconstitutional, the judicial branch would no longer have the highest authority of deciding constitutionality. Finally, the justices of the Supreme Court are politicians in some respects after all. They would rather not pass up the opportunity of influencing such a major political issue.
4. The justices may prioritize state authority. Justice Kennedy suggested that DOMA violates states’ rights. Section 2 of DOMA says that states that prohibit gay marriage are not required to recognize gay marriages issued by other states. But this may undermine states’ rights — every state has a right to issue documentation that must be respected by all other states. The areas of marriage, divorce, and custody have also always been the jurisdiction of the states. The court may rule that the federal government has no business regulating marriages at all.
5. The justices may prioritize national uniformity. Paul Clement, the lawyer representing the GOP, argued that DOMA is essentially definitional — Section 3 of DOMA says that all federal laws concerning marriage will operate under the definition of marriage as being only between one man and one woman. For practical purposes, the government wanted to supply a uniform standard for judging whether someone was married or not for federal purposes. When President Bill Clinton originally signed DOMA, few people supported gay marriage, and Section 3 simply reflected the majority opinion.
This decision is also unlikely because national sentiment towards gay marriage has shifted so dramatically. The definition of marriage as one man and one woman no longer reflects the majority opinion.
It remains up in the air how the Supreme Court will rule on the civil rights issue, but the other aspects of the case point to ruling against DOMA.