High court likely to ax DOMA

A majority of justices indicated they’d invalidate parts of the law.
March 28, 2013

The U.S. Supreme Court indicated it’s likely to strike down a federal statute that defines marriage as between a man and a woman during oral arguments Wednesday.

The court’s decision is expected in June, with one justice likely to be the swing vote.

But even if the Defense of Marriage Act is struck down, same-sex couples in Minnesota will still be unable to claim benefits the government grants to married couples, like health insurance and some tax credits, because a Minnesota statute bars them from legally marrying.

The court also heard oral arguments Tuesday concerning California’s Proposition 8, which, like DOMA, defines marriage as between a man and a woman.

Although they seemed to be leaning toward striking DOMA down, some justices questioned whether the cases should be brought before them at all.

“The problem with the case is that you’re really asking ... for us to go into uncharted waters,” said Anthony Kennedy, who will likely hold the swing vote when the high court rules on DOMA.

Opponents say the measures are unconstitutional because they create two separate classes of married couples, violating the Constitution’s equal protection clause.

In 2011, the U.S. Justice Department said in a brief it would no longer defend DOMA, which President Bill Clinton signed into law in 1996.

Some justices were “basically daring” President Barack Obama to stop enforcing DOMA rather than simply questioning its constitutionality, said Dale Carpenter, a constitutional law professor at the University of Minnesota Law School who was present for the oral arguments.

Carpenter has testified before the Legislature in favor of legalizing same-sex marriage in Minnesota.

“If [Obama] has made a determination that executing the law by enforcing the terms is unconstitutional,” said Chief Justice John Roberts Jr., “I don’t see why he doesn’t have the courage of his convictions … rather than saying, ‘Oh, we’ll wait till the Supreme Court tells us we have no choice.’”

Currently, only nine states and the District of Columbia allow same-sex couples to legally marry. Two more states observe same-sex marriages made out-of-state.

Minnesotans voted in November not to amend the state constitution to define marriage as between a man and a woman, but same-sex marriage is still illegal in the state.

In March, two members of the Minnesota state Legislature introduced a bill that would legalize same-sex marriage. It passed through House and Senate committees on party lines and will be heard by the full Legislature in the coming months.

Gov. Mark Dayton has said he will sign the bill into law if it makes it through the House and Senate.

Narrow rulings expected

Rather than a sweeping opinion that proclaims same-sex marriage legal, the high court may only strike the measures down on narrow grounds, Carpenter said.

“[The justices] are cautious people, they are not radical revolutionaries,” Carpenter said. “I think what we heard the last couple of days was a court searching for a way to decide these cases in the narrowest, principled way possible.”

The justices may also fear the backlash from what could be seen as a decision the country isn’t ready for, said Michael Vargas, a third-year law student and president of the American Constitution Society for Law and Policy.

“The court is very cognizant of that,” Vargas said. “They’re very aware of where the public is.”

The court should only focus on the constitutional issues before it, said Drew Christensen, co-chair of the College Republicans at the University.

“I don’t think public opinion shapes the Supreme Court’s opinion at all,” Christensen said. “And if it is, it shouldn’t be.”

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