Supreme Court may make a decision on DOMA this week, if you were a betting man or woman, which way do you think that it'll go?

Bye-bye, DOMA.

I’m a pessimist. Just when I think America might do the right thing I am quickly disappointed.

I’m not pinning any hopes on it.

I am hopeful. Roberts has surprised before and I have an inkling of hope that he doesn’t want to preside over a court that was on the wrong side of history.

I am very hopeful, only because logic dictates that since marriage is a legal contract between two adults that is issued by the courts, that they can not discriminate against those people based on their gender.

I think DOMA will be overturned, but that the majority opinion will be written with an explicit limit as to how broadly the decision can be construed. All of the litigants have decided to focus on Justice Kennedy, and Kennedy has more or less made it clear that he thinks DOMA violates the Tenth Amendment. By making the DOMA case into a Tenth Amendment issue, however, Kennedy has also signaled that he doesn’t think overturning DOMA requires overturning extant laws banning same-sex marriage. That will be a matter for the Proposition 8 case (the language of which has also largely been targeted at Kennedy).

I think DOMA will go bye bye. I don’t think states will be able to limit marriage to heterosexual couple anymore. Any laws on the books in states stating otherwise will be null and void. Same as when back in 2003 (check me on the year I could be off) the supreme court decided homosexual sex is not against the law anymore in the US, no matter what some states still have on the books.

DOMA was and has always been unconstitutional. I expect Roberts to recognize that but believe Thomas will support the act. Thomas isn’t the brightest justice and he’s very closed minded.

I am holding my breath to see both Prop 8 and DOMA overturned.

@SavoirFaire‘s comment is important: whatever the ruling, the battle is unlikely over. I don’t want to feel comfortable until we see a federal overhaul.

I hope you don’t mind me asking, but I’m curious why it is a “biggun’” for a Canadian, @Mama_Cakes?

Move to the U.S..

@JLeslie There’s virtually no chance that the DOMA case will lead to nationwide marriage equality. The legal connections just aren’t there. DOMA doesn’t stop a single person from getting married, regardless of whether they want to marry a member of the same sex or a member of the opposite sex. What it does is limit the rights afforded to a subset of the married population. Since it doesn’t prevent anyone from getting married, there’s no legal grounding for ruling that the unconstitutionality of DOMA further entails the illegitimacy of all laws against same-sex marriage. It would be like hearing a case on Miranda rights and deciding that the federal government had the right to regulate the sale of candy canes. The issues are legally unrelated, even if DOMA and marriage equality are closely connected from a political standpoint.

That’s why the Proposition 8 case is so important. That’s the one that is legally analogous to Lawrence v. Texas (the 2003 case that annulled sodomy laws nationwide). Proposition 8 does prevent people from getting married to members of the same sex, and as such it does raise the legal issue of whether or not such a ban is constitutional. My position for a long time has been that the precedent set in Loving v. Virginia—which declared marriage a basic civil right—means that marriage equality is already the law of the land, and that every state standing in the way of same-sex marriage is acting illegally. So far, the courts that have heard Proposition 8 have agreed. I doubt the Supreme Court will see it the same way, though. Even if they do find that the previous decisions to overturn Proposition 8 were sound, I expect another ruling with explicit limitations regarding how broadly it can be construed.

Here’s hoping I’m wrong.

@SavoirFaire i should have started a new paragraph and specified what I was talking about after I wrote I think DOMA will go bye bye, so it looked like a separate thought.

A bit more waiting.

Looks like DOMA is gone. Yay!

A facebook friend wrote Prop 8 case was dismissed. What does that mean in practical terms regarding prop 8?

@JLeslie Dismissing the Proposition 8 case means that same-sex marriage is legal in California, but that no decision was made or even considered regarding the constitutionality of same-sex marriage nationwide.

More specifically, the Court’s ruling was that those appealing the lower court’s decision to overturn Proposition 8 did not have standing to appeal in the first place. Since they do not have standing, the Supreme Court does not have to consider their appeal. This means that the law reverts to the last official decision, which was the district court’s overturning of Proposition 8.

@SavoirFaire Thanks. Since DOMA was tsruck down does it mean gay married couples nationawide can file their federal income tax as a married couple? Or, do they have to be living in a state that recognizes gay marriage? For instance if they get married in NY, but then move to TN where it isn’t legal, then they lose their marital status right?

I’m going to Disney World New York!!!!!

@JLeslie That question is precisely why the Court’s decision on the Proposition 8 case is not the end. Here’s what is clear, legally speaking: if you marry someone of the same sex in a state that recognizes same-sex marriage and you live in a state that recognizes same-sex marriages, then you qualify for the federal benefits (regardless of whether the state in which you were married and the state in which you live are the same state).

What is unclear is what happens in the scenario you brought up. One purpose of DOMA was to suspend the Full Faith and Credit Clause of the US Constitution in the case of marriage. By excluding same-sex couples from federal benefits no matter what, there could be no conflict scenarios like the one you describe. Without DOMA, there can be such conflict scenarios (which Scalia’s dissent alludes to in mourning the decision).

Since these are federal benefits, it should not matter where a couple lives so long as their marriage was legal at the time and place it was performed. Logically, legally married same-sex couples who move to states that don’t recognize same-sex marriage will simply have to calculate and file their federal and state taxes in two different manners (one as if they are married, the other as if they are not). But is this feasible in the long term?

There are two problems here. First, the moral crusaders of some state or another may attempt to block same-sex couples in their state from filing for federal marriage benefits. This would be strategically insane, but I wouldn’t put it outside the realm of possibility. Second, a same-sex couple could sue their state for recognition under the premise that the Full Faith and Credit Clause, now fully restored, requires each state to recognize the marriages performed in every other state (as it has always been understood to do).

In either situation, we end up with a new case. Moreover, these are just two ways in which the issue could rise to federal attention again. So the short answer is that there is no clear legal answer to your question at present. Opponents of same-sex marriage are in a bit of a bind here. The smart thing to do is not push back lest they lose even more ground. But by not pushing back, they’ll lose ground anyway as same-sex couples interpret their rights ever more broadly. Long story short, this war is won. It’s just a matter of making it official.

(I forgot to mention: the reason that this is legally unclear right now is that the DOMA case only challenged section 3 of the law, whereas section 2 is the one that talks about the duties of other states. The Full Faith and Credit Clause is technically addressed by section 2, then, but the two sections are intertwined. It’s not really possible to overturn section 3 without making section 2 an issue because some federal benefits depend upon state recognition. Moreover, the same reasoning used to overturn section 3 should apply to section 2, which is why it’s only a matter of time until there is another court case on the matter. Again, Scalia more or less states this in his dissent when he talks about waiting for the other shoe to drop.)