Gaytterdämmerung Day 2: Can DOMA Survive?

Day 1 of Gaytterdämmerung is over, with the conventional wisdom of the oral arguments in the Proposition 8 case resulting in the expectation that it is unlikely that Proposition 8 will survive it's Supreme Court review, but the hopes for a sweeping end to marriage discrimination in the United States are also diminished.

There is only one question on which it seemed five Justices might agree:  the judgment should be vacated because the petitioners lack standing.  The Chief Justice and the four more liberal members of the Court indicated their sympathy for that position.  If they vote that way, the Ninth Circuit’s decision striking down Proposition 8 will be vacated – wiped from the books – but U.S. District Judge Vaughn Walker’s judgment invalidating Proposition 8 would remain unaffected.  That district court ruling would apply to the parties in the case.  There would be additional litigation about whether and how Proposition 8 would be applied elsewhere.  If Proposition 8 were invalidated in those cases, an appeal likely could be taken in a case in which a state or local official wanted to enforce it.  So the issue would go back to the Ninth Circuit, and potentially to the Supreme Court in a few years.

The arguments involving DOMA in United States v. Windsor that will be heard today are clearer than those that were heard for Proposition 8 on Tuesday while the stakes are even higher. Over a dozen federal courts that have examined DOMA have ruled that it violates the United States Constitution. The real question is not whether DOMA is unconstitutional, but under what jurisprudential theory.

For years, what level of judicial scrutiny should be applied to laws that classify individuals based on sexual orientation has been one of the most pressing in constitutional law. The Obama administration and Justice Department have taken the position that LGB people are what is known as a "suspect class" and thus laws that discriminate against us must receive heightened scrutiny and the government has to have a "exceedingly persuasive reason" for the classification which must further a legitimate governmental interest. However, even under the lowest level of review, where the government must merely have a "rational basis" for enacting DOMA it is unlikely that the law survives. There's simply no rational reason that the government has for enacting a law that denies the recognition of legally married same-sex couples for federal benefits.

It will be fascinating to hear how the Justices grapple with the issues involved, in 2 hours of debate.