DOMA is Doomed?

DOMA is Doomed?

Most Believe DOMA is DOOMED

Yesterday the Supreme Court heard arguments pro and con regarding the Defense of Marriage Act.  If observers are correct, it may be repealed in a couple of months.

However, understanding how the Court actually works, the outcome remains much in question.

In a sense, the pleas heard by the Court are a formality.  What they must consider are the thousands of pages of briefs presented to them.  They must carefully examine every sentence of every document, weighing it against the Constitution of the United States.

During yesterday’s proceedings, two amendments to the Constitution were considered.  Everyone has heard much about the 14th, which requires “equal protection under the law”.  It may be a valid argument noting the fact that legally married same-sex partners have been denied federal benefits as the result of DOMA.

Justice Kennedy revealed that he has concerns because of the 10th amendment.  “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

State’s vs. federal rights are often issues divided by a very fine line.  If this is the primary source of the Court’s decision, petitions heard in the last two days may receive different decisions.

California’s proposition 8, heard Tuesday, declares that marriage may only exist between a man and a woman.  It was passed by voters in 2008 with a narrow margin, and it is widely believed it would fail if voted on today.  Subsequently it was reversed by a federal Appeals Court in 2010.

I believe the Court is unlikely to strike down the California law, because it was passed by the voters of the state, and therefore is not within their jurisdiction.

It was apparent to most in the court that the Justices were unhappy that they had chosen to accept the case at all.

They could make a limited decision that would affect California only.  What I believe will happen is a refusal to make a decision based on the 10th amendment.  If that is their choice, it will be returned to the federal Appeals Court, which has already decided to resend it.  Not the victory the LGBT community had hoped for, but a small one.  The state would revert to a previous law which allowed gay marriage.

When I first heard that the Court had agreed to review the case, I wrote a piece doubting the wisdom of the Justices.  Civil Unions are a state’s issue.  Marriage has never been a federal issue, nor should it be.

However, where DOMA is concerned, I believe they will make a decision.

DOMA is a federal law, which was signed by President Bill Clinton in 1996.  There is a single line that is undoubtedly unconstitutional.  It defines marriage as being “between a man and a woman”.

Because federal law supersedes state law, if upheld, it could nullify the ability of 9 states, which now allow same-sex marriage, to enforce their own civil law.

DOMA may apply to the 10th and 14th amendments.  The 14th, because it discriminates against the rights of same-sex couples who are employed by federal agencies.  The 10th, because, once again, laws involving marriage should be a state issue.

Therefore, I believe it will be repealed.

The Court is not supposed to include in its decision public opinion.  However, with a preponderance of institutions and individuals in favor of gay marriage, it is almost impossible for them not to have the subject in their thoughts.

It has always been a simple question for me.  Why should we care?  What harm can come to me if full recognition is given to the homosexual lifestyle?  Should all Americans have the freedom to live their lives as they choose?  And, lastly, why are Republicans so homophobic?  I wonder if they know they “can’t catch it”?

James Turnage

Columnist-The Guardian Express

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