Steve Miller isn’t kidding that the Administration’s decision about DOMA is good news. I’d call it a game changer.
Nothing in the Attorney General’s letter limits the analysis he uses, which is why a lot of folks are jumping the gun and saying its reasoning will apply to all gay issues. That’s probably true, but premature. Let’s all take a deep breath.
While the courts don’t necessarily need to take their cues about the issues in a case from the parties, that is clearly the preference and practice. And while the way the federal government articulates the issues wouldn’t necessarily be the be-all and end-all, again, that would clearly be of significance to a court. The federal government is no ordinary party.
I think the administration is trying to get the first rulings on DOMA focused on (a) Section 3 and (b) how it applies to states that have already adopted full marriage rights. Section 3 just applies to the federal government, and says it can only recognize opposite sex marriages. Courts generally shouldn’t reach out for issues — and particularly constitutional issues — that go further than are required to actually decide the particular case before them. So a court, and particularly the Supreme Court, could heed the government’s lead, and decide only those two issues — Is Section 3 constitutional with respect to the federal government as it applies to a couple who are legally married under a state’s law?
That would leave other issues for another day — civil unions and domestic partnerships, Section 2 (which allows states the freedom to ignore same-sex marriages from other states), etc.
And a decision along those lines from the Supreme Court would be the best win of all, I think. Moving marriage squarely into the equality column is a solid victory. And if the Supreme Court were to rule that sexual orientation is entitled to heightened (but not strict) scrutiny, that resolves one of the foundational issues the lower courts has been struggling with — though it’s also possible the court could adopt rational basis and still rule that federal treatment of two marriages, one straight, one gay, is not equal treatment under the law. Or Justice Anthony Kennedy could move a bit further on his liberty analysis from Lawrence v. Texas, a different kind of analysis entirely.
In any event, this would then leave the lower courts to wrestle for a few years with the other questions, and the Supreme Court could see how that develops. It’s not out of the question that lower courts could rule in our favor on the more contentious issues, and the Supreme Court would not need to say an additional word. The biggest problem, from our perspective, is when lower courts disagree and the Supreme Court needs to resolve the disputes; if the lower courts rule in our favor, the Supreme Court can just refuse to accept certiorari from the losing parties. They don’t need to accept any case offered to them, and in fact refuse the vast majority.
The most amazing thing about this decision for me, though, is still the political aspects of it. Obama has made the political decision that the split in the electorate that worked against Clinton, Gore and Kerry has now been edged more solidly into the GOP side. In other words, the toxic effects of the anti-gay marriage side have migrated away from the Dems and more generally the independents, and are most potent among the Republicans now.
That’s why the letter is addressed solely to John Boehner. The Administration has taken an unambiguous stand in favor of gay equality on marriage. The ball is now in Boehner’s court, and his party’s
This extremely high profile move will have a year and a half to work its way into the public opinion polls, but I think the timing is just about right, and Obama will prove to have the better case on this issue come 2012. Gay marriage will exacerbate the existing split among the GOP, and if the economy improves (clearly one of the biggest issues on voters’ minds), gay marriage will only hurt the GOP — the exact opposite of the effect it had in 2004.
These things are never certain. But I think Obama’s political and legal instincts on this get it just right.