During the hearings for DOMA and Prop 8 this week at the Supreme Court, one of the more interesting problems of bringing both cases in such close proximity arose but was carefully ignored by everyone other than the Chief Justice. He posed Solicitor General Donald Verrilli a couple of questions during the DOMA session that had to do with the extent of federalism and the power of the states within their own spheres. The questions were a bit elliptical and the meaning a bit less than clear, but the substance is this:
You want us to overrule DOMA on the basis of federalism, that the Federal Government should not take a stand on marriage as such, but leave it to the discretion of the states and then simply recognize the status of individuals according to how the state characterizes them (married, same sex committed couples, domestic partners, etc). States that do not recognize other arrangements than traditional marriage would not be forced to reciprocity by the federal government. AND you want us to assert federal Constitutional supremacy over the California State Constitution, which was, in fact, legitimately amended by a legally mandated process to disallow gay marriage solely within the boundaries of that state.
Essentially, what he said was this: we are moving at cross purposes here. Either the federal government has supremacy power over the states when dealing with questions of rights and how they may be exercised, or it does not. If it does, then DOMA has to stand for the basis for overruling Prop 8, federal civil rights supremacy, to be legitimate. If DOMA, on the other hand, is a federal overreach into the rights of the states, then the decision of the California Supreme Court should be reversed, as California law was followed to enact Prop 8 and the federal government should have no say in the matter.
Obviously, this is not how the cases are going to play out. But it does explain why several of the justices seem very open to either dismissing the Prop 8 case as improvidently granted, or finding another way to affirm the state Supreme Court. If the case is DIGed, the District Court's ruling stands (probably suggesting that the Prop 8 backers had no standing to represent the amendment in court), and Prop 8 is dead. If it is dismissed, likewise; the result stands at the state Supreme Court level.
So, what I expect is some sort of straddle, where DOMA is overruled and Prop 8 is disposed of administratively. But let's be clear: even if DOMA is affirmed and Prop 8 is reversed, civil momentum is on the side of gay marriage. Even without a one-size-fits-all-states Roe v. Wade sort of ruling (something the Court is anxious to avoid), we are looking at a fundamental change in how marriage is viewed, both legally and culturally. It is only a matter of time.
