Many of us who have been following the Proposition 8 case and the various cases in which the federal Defense of Marriage Act ("DOMA") are waiting with a mix of anticipation and dread to see what the U. S. Supreme Court decides to do on Friday when it decides which, if any of the Prop 8 and DOMA cases it will consider this current term. If the Court refuses the Proposition 8 case, then marriage will be legal again in California and the Court will have ducked making a ruling that would potentially have national application. In the case of the DOMA appeals, the Court cannot as easily side step the issue since there are split decisions in the federal courts and typically the Supreme Court will act to set consistent precedent across the country. Some legal experts now speculate that the Edie Windsor case (Windsor is pictured above) may be the one most likely to be taken up by the Supreme Court. As readers may recall, both the U.S. Department of Justice and the City of New York have supported Windsor's claim that DOMA is unconstitutional. An article by the American Constitution Society lays out why such is the case. Here are excerpts:
While marriage equality supporters have been giving thanks for the recent ballot box victories and the Second Circuit’s Windsor v. U.S. decision, the most recent Defense of Marriage strike-down by a federal court in mid-October, the law-focused among us are also looking ahead to the next big question: What will the U.S. Supreme Court do on Nov. 30, when it is scheduled to decide on the marriage-related cert petitions pending before it?
Notably, Windsor is now looking, to many, like the leading candidate among cert-worthy marriage cases and, for marriage equality advocates, a particularly promising one for at least three reasons.
Perhaps most importantly, Windsor presents a powerful – and personal – story of DOMA’s discriminatory effects on lesbian and gay married couples. Edie Windsor and Thea Clara Spyer were together for 42 years, from the early 1960s through Speyer’s death in 2009, two years after the couple married in Toronto, in a relationship so committed and moving that it became the subject of a widely acclaimed documentary, Edie and Thea. Yet because of DOMA, the United States refused to recognize their relationship and, when Thea died, sent Edie a $300,000+ tax bill that would have been $0 had the government acknowledged their marriage.
In addition to its facts, Windsor also adds a new dimension to the DOMA jurisprudential landscape. Among the ten federal court rulings to invalidate DOMA thus far, Windsor is the first where a circuit court applied heightened scrutiny to the statute’s sexual orientation-based classification. In the 2-1 ruling, Chief Judge Dennis Jacobs followed the high court’s traditional analysis, asking whether gay people have suffered a history of discrimination; whether sexual orientation is a distinguishing characteristic; whether sexual orientation relates to an individual’s ability to contribute to society, and whether gay people are relatively politically powerless. All of these inquiries, he found, warrant intermediate scrutiny for classifications that, like DOMA’s, distinguish between gay and non-gay people.
Finally, many believe that Justice Elena Kagan is likely to recuse herself if the Court accepts the First Circuit’s Gill case for review because she had some involvement in the case during her Solicitor General service. By all accounts, the full Court, including Justice Kagan, would be available to hear and decide Windsor.
As has been noted on this blog many times, there is no rational basis for DOMA at any level of scrutiny because it's sole basis flows from granting special privileges to certain Christian religious beliefs over the rights of citizens. Not only does it violate the Equal Protection Clause, it also is rank religious based discrimination and a violation of the First Amendment grant of religious freedom to all citizens, not just Christofascists.