The Two Gay Marriage Cases Could Totally Undermine Each Other
The "irresolvable depth" of the tension between the two gay marriage cases became evident during arguments this week, SCOTUSBlog's Tom Goldstein points out.
One case challenges the anti-gay Defense of Marriage Act and argues the federal government should recognize same-sex marriages that are currently legal in nine states. (DOMA, enacted in 1996, limits marriage to man-woman couples for federal law purposes.)
The other case, however, is a challenge to Proposition 8, a California law that banned gay marriage. A federal court (which is part of the federal government) overturned the law, and gay rights activists are fighting to keep the law overturned.
"The challenge to DOMA is undergirded by a sense that marriage is a matter for state rather than federal regulation," Goldstein writes in SCOTUSBlog. "The challenge to Proposition 8 is a direct challenge to just such a decision by a state."
The tension between the two legal theories was evident when Roberta Kaplan was arguing the case against DOMA for her client, 83-year-old lesbian widow Edith Windsor.
Kaplan argued that DOMA violates the Equal Protection Clause of the Constitution, rather than stressing that it infringes on states' rights under the principles of federalism.
Chief Justice John Roberts asked Kaplan whether it would violate states' rights if the federal government "went the other way" and said gay couples explicitly had the right to marry.
Here's the exchange that followed:
MS. KAPLAN: "I think the question under the Equal Protection Clause is -- is what the distinction is [between gay couples and straight couples].
CHIEF JUSTICE JOHN ROBERTS: "No, no. I know that. You're following the lead of the Solicitor General and returning to the Equal Protection Clause every time I ask a federalism question."
It's pretty clear why Kaplan and the lawyer for the gay-friendly Obama administration might want to focus on the equal protection argument rather than the federalism argument.
If the Supreme Court says the federal government can't regulate marriage, then the feds can't step in and say every state must allow same-sex unions.
So, if DOMA dies on federalism grounds alone, gay rights activists might have to wait a while before every state in the union legalizes gay marriage on its own.