Strapping In For The Fight

Yesterday, we covered the Prop 8 arguments in front of the Supreme Court, and today the Court is tackling the other major same- sex marriage issue in front of it this term - the Defense of Marriage Act, also known as DOMA.

It was clear from the way the Justices of the Supreme Court handled the arguments in the Prop 8 case on Tuesday that they do not really want to judge the Prop 8 case on its merits. Rather, it appears the Court may want to simply dodge the Prop 8 case, by insisting those who brought the case to the Court don't have standing. If SCOTUS - shorthand for the Supreme Court Of The United States - refuses to decide the case based on lack of standing, the ruling of the Ninth Circuit Court will stand, making Prop 8 unconstitutional and making same sex marriage 100% legal, but just in California.

If, as most SCOTUS watchers agree, the court evades a real decision on making same sex marriage legal in all states, there is virtually no chance of SCOTUS dodging the question of constitutionality on DOMA, which faces them today.

In short, those on the political right who have pushed the DOMA case before the Supreme Court have strapped themselves to this issue, in the same way terrorists strap themselves to bombs. Neither idea is likely to be productive, in our estimation.

The difference between the DOMA case and the Prop 8 case is clear in the recap from Wonkblog's Dylan Matthews, and aligns itself clearly with our long-standing focus on civil marriage as a type of umbrella contract that handles multiple facets of what is legally covered under the term marriage.

Taxes - which clearly fall under the jurisdiction of the state - are always a big deal, and the ongoing battle over estate taxes is one of the biggest focal points of the tax battle.

The DOMA case - which is actually United States vs. Windsor - concerns a same-sex, dual-citizenship couple, married in Canada after a forty-year courtship. Unfortunately, Edith Windsor's spouse died, and Ms. Windsor was forced to pay $363,053 in estate tax on her dead wife's estate, a burden she would not have had to bear if the Federal Defense of Marriage Act were not in force.

The Obama Administration itself does not believe in DOMA, and even President Clinton, who signed DOMA into law in 1996, no longer believes that DOMA is constitutional. Effectively, there may not have been anyone with standing defending the bigoted pro-DOMA opinion from the right, but - thanks to extremists on the political right - the task of carrying the anti-equality banner fell to John Boehner, which he reassigned to the Bipartisan Legal Advisory Group.

In the end, we frankly don't see how DOMA can remain.

Even many conservatives and libertarians, who come at DOMA from their own conservative viewpoint, see DOMA as unconstitutional - not because it denies the rights of the marriage contract to those legally entitled to it, but because they consider the Federal government telling the states how they must handle marriage to be an abuse of Federal power.

No matter how the Supreme Court decides either case, as we noted on Tuesday, the numbers simply don't support continuing legal policies that give gay and lesbian Americans second-class citizenship.

We are one nation, where separate but equal has already been found to be legally indefensible with race. It's no more defensible with sexual orientation.

Separate but equal isn't equal. In a society that believes in equality under the law, it's time both DOMA and Prop 8 were struck down, for good.