DOMA Looks Doomed

DOMA appears doomed, not because it's a bad law, but because it tramples all over States' Rights:

In his line of questioning, Kennedy, who has a track record in favor of gay rights, repeatedly contended that the federal government had exceeded its constitutional authority.

“You are at real risk of running in conflict with what has always been thought to be the essence of the state police power, which is to regulate marriage, divorce, custody,” he told Paul Clement, the lawyer arguing in favor of upholding DOMA.

When Clement tried to argue that it was a valid exercise of federal power and does not infringe on states’ rights, Kennedy asked why Congress could deny benefits “where the voters have decided” that same sex marriage ought to be legal. “I think it is a DOMA problem,” he said. “The question is whether or not the federal government, under our federalism scheme, has the authority to regulate marriage.”

This is a valid concern! American law has always consigned almost all authority over marriage to the states. There has always been very little role for the Federal Government, right from the very start, and the Supreme Court is mindful of that.


Caption: "Queen Amor," a pro gay marriage activist, poses in front of the US Supreme Court March 26, 2013 in Washington, DC.


But that also means the Supreme Court is unlikely to overrule Proposition 8 in California. After all, Proposition 8 was narrowly passed in a valid election in 2008. Times have changed since then, however, and so gay marriage would likely succeed today. Nevertheless, the Gay Rights forces in California have been leery about pushing another Proposition onto the ballot so soon, in order to avoid a pointless waste of resources in the event they have misjudged the electorate. How the Supreme Court tilts on Proposition 8 will be of the greatest interest.