Marriage in the Balance
BY E.J. Graff
September 24 2012 4:00 AM ET
(From left) Perry v. Brown attorney David Boies, HRC president Chad Griffin, attorney Ted Olson, attorney Theodore Boutros.
So what should we expect in the DOMA cases? Everyone I interviewed believes that the Supreme Court will probably — note the probably — strike down DOMA section 3. The four liberal justices are all expected to strike it down. Almost everyone believes that John Roberts, Antonin Scalia, Samuel Alito, and Clarence Thomas will uphold. That makes Justice Kennedy the swing vote, as usual. He wrote powerful opinions on our side in Romer v. Evans and Lawrence v. Texas; he’s libertarian on individual rights; and he doesn’t like the feds encroaching on state power (consider his vote to strike down Obama’s Affordable Care Act). For that reason, most people predict he’ll vote against DOMA.
As Denniston writes, “Kennedy, I believe, does not want the court to do anything that he would deem to be undermining his opinion in Lawrence (in which he authored the opinion striking down Texas’s sodomy laws). A ruling to uphold DOMA, I believe, would look to him as a repudiation of not only Lawrence but also his states’ rights/federalism jurisprudence.” And although justices won’t acknowledge it, they do take the cultural temperature on hot-button issues. Kennedy will have noticed that an ever-increasing majority of Americans favor our freedom to marry. Even better, this fall advocates expect that citizens in two or three states (Maine, Maryland, Washington) will pass marriage equality laws at the ballot box. That breakthrough will get enormous play and will make it easier for Kennedy to go our way.
Don’t spit out your coffee, but some folks think we’ll get Chief Justice Roberts on our side too. After all, the man clearly loves to strike down federal statutes, and he doesn’t have the same culture-war passion as Scalia and Alito. What’s more, he might conclude that such an important social issue shouldn’t be decided narrowly. Since everyone knows which way the culture is heading, Roberts might decide he doesn’t want to be on the discreditable Plessy v. Ferguson side — the infamous 19th-century Supreme Court decision upholding legal segregation — and will vote to strike DOMA so that both he and the court will look good in the history books.
Now, here’s where you really have to be sure not to spit out your coffee: One of my experts thinks Clarence Thomas might strike down DOMA as well. This lawyer won’t say so on the record, since it’s so speculative, but he points out that Thomas is a true believer in federalism. In Lawrence, after all, Thomas wrote that Texas’s sodomy ban was “uncommonly silly” and that “If I were a member of the Texas Legislature, I would vote to repeal it.” He voted to uphold the ban because, essentially, he thought that as a matter of principle, Texas had the right to be silly. Could the silent justice decide that while allowing same-sex couples to marry is “uncommonly silly,” Connecticut, Massachusetts, Iowa, New Hampshire, New York, Vermont, and the District of Columbia have the constitutional right to make that decision?
Paul Clement, on behalf of BLAG, has been arguing that, in the 1972 case Baker v. Nelson, the Supreme Court let stand a state law that limited marriage to different sexes — and that the court will simply say it’s abiding by that precedent in upholding DOMA. But as we all know, opinion — in life and in law — on LGBT issues has moved with incredible speed. In Lawrence the court overturned its own ruling in Bowers v. Hardwick after just 17 years.
Still, you can never be certain with the Supreme Court. Kennedy could decide that changing the “traditional” definition of marriage is a step too far and that Congress can see fit to regulate such a critical social institution. We could lose. DOMA could survive.