A Brief Discussion of the DOMA Litigation with Very Few Interesting Points

I am not involved with the subject of this post and I don;t know that much about it, but that doesn;t prevent me from going off half-assed about it. This is the interwebs, people. Anyway, the U.S. Supreme Court is considering the constitutionality of the federal Defense of Marriage Act. I suspect that, if it falls, it will fall because regulation of marriage is viewed as solely a State law issue, and the death knell of DOMA will also be a severe blow to federal Commerce Clause power. That is bad from a civil liberties and liberal perspective because many important federal laws and are premised on a strong federal commerce power.

It is hard to understate how important this is (and how unappreciated it is by many liberals who support gay rights). It is also important to understand that the validity of a law is a very different thing than a law being good policy. DOMA could be repealed; that is a better result for liberals supporting broad commerce power than finding DOMA unconstitutional unless the Court finds a fundamental right to gay marriage inherent in the Constitution, a thing I think a majority of the current Court is very unlikely to do.

Let me note, in the above regards, that the case in which the Supreme Court accepted certiorari, United States v. Windsor, was premised on finding DOMA discriminates against gays in violation of the Fifth Amendment (note that the Fifth Amendment's due process clause is thought to incorporate an equal protection guarantee similar to the Fourteenth Amendment's, which is explicit; the Fourteenth Amendment only applies to the States). This incorporation of equal protection guarantees is reviled by many hard line conservatives -- it is a form of "substantive due process" Justice Scalia, for one, has railed against. Chief Justice Roberts and Justices Alito and Thomas certainly share that view.

That means that the Court could go off on "substantive due process" and find DOMA not unconstitutional, reversing the circuit court's reasoning. That means that if it is to uphold the circuit it would have to do so on another ground, such as finding DOMA in violation of the Commerce Clause. Of course, the Court could also find DOMA unconstitutional as a substantive due process/equal protection violation, but, again, I am doubtful a majority of the Court will do that. Finally, the Court has asked for briefing on the issue of standing, and it could find that the case is not properly in court at all, dodging the issue. I doubt that is likely, too, though the conservatives have wanted to limit standing of plaintiffs to sue.

This is so important -- and so poorly understood by so many -- that I may right separately about it another date. I thought, though, it might help to give a heads up about it now.