Harvard law professor Noah Feldman has an interesting piece at Bloomberg.com which suggests that, if the U. S. Supreme Court takes the cowardly approach and punts on directly confronting gay marriage nationwide yet strikes down DOMA, the result may well be legal chaos and a huge volume of lawsuits against states that do not recognize gay marriage or against the federal government brought by gays in anti-gay states. The piece makes a lot of sense and suggests that if the justices are smart, they will go whole hog and strike down DOMA and find a federal constitutional right to same sex marriage. Thus, the biggest question may be whether or not the Supreme Court gives in to cowardice rather than hand down a broad progressive ruling. Here are excerpts from the article:
Justice Anthony Kennedy, the perennial swing voter, might well prefer some gradual way to introduce gay marriage without producing the headline “Court Grants Gay Marriage.” But the problem with this gradual strategy envisioned by court observers and attributed to Kennedy is that it would create anomalies leading to a nightmarish barrage of new litigation. Instead of attenuating criticism of the court by avoiding a single“Eureka” moment, the court would put itself, along with lower courts, at the center of hundreds more headlines for years to come. And they would all be of the same ilk: “Court Creates Legal Nightmare; Citizens on All Sides Angry.”
To understand the mess that would result if the court struck down DOMA without finding a general right to same-sex marriage, consider what would happen if the federal government recognized marriages performed in states that allow gay couples to marry while continuing to deny marital status to couples in other states. . . . Gay couples would return to their home states with a piece of paper that should, in principle, entitle them to federal marital tax status, immigration benefits and more. But their home states would probably decline to recognize those out-of-state marriages, and deny them state-level marriage benefits.
If the Supreme Court’s decision to strike down DOMA depended on finding that states have an inherent right to define marriage in which the federal government cannot infringe, then the home states’ policy would probably be upheld. The result would be couples who are both married and unmarried for purposes of the same tax returns, mortgages and hospital visits. Each of these conflicts would be brought to the courts. State and federal courts would probably render divergent conclusions --across all 50 states and 13 federal circuits. If this isn’t legal chaos, nothing is.
[Or] the anomaly would arise when legally married gay couples moved to states that didn’t recognize their unions. Presumably they would nevertheless bring their federal benefits with them -- giving rise to the same legal issues just described.
[T]he problems that already exist in a world where some states recognize same-sex marriage and others don’t would be compounded and thrown into the federal courts.
The court’s supposed motivation to avoid declaring a general right to same-sex marriage is to allow the political process to take its course, and not impose a unified federal solution before everybody’s ready to accept it. . . . . But this theory relies on the assumption that even a messy political process would be superior to judicial fiat because it would leave the courts out of the equation. A partial or split decision on same-sex marriage would have the opposite effect. Instead of promoting what the great Alexander Bickel called the“passive virtue” of judicial prudence, it would put judges front and center on the issue for the foreseeable future. From the court’s perspective, it would be easier just to do the right thing. Here’s hoping Anthony Kennedy sees it that way.
Stated another way, if the Court strikes down DOMA and the boyfriend and I get married in New York or Washington, D.C., are we married for federal purposes even though Virginia could ignore our marriage absent a broad ruling in Hollingsworth v. Perry? Candidly, I don't know, but it would be a fun case to litigate. The bottom line is that all gay marriage bans need to be struck down as unconstitutional under the U. S. Constitution.
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