Great news! The Supreme Court announced on Friday, December 7th that they are going to hear two cases that could potentially turn over DOMA.
Over and over in American jurisprudence, the members of our Supreme Court have faced a decision: should they write themselves into history? Or duck?
Friday’s announcement that they’ve placed two same-sex marriage cases on their docket suggests that they won’t duck this time. United States v. Windsor and Hollingsworth v. Perry are a matched set, each turning on when government in the United States may discriminate on the basis of sexual orientation and when “equal protection of the laws” forbids such discrimination.
Windsor is a challenge to the Defense of Marriage Act, which declares that federal marriage benefits are available only to “a legal union between one man and one woman as husband and wife.” In it, the Supreme Court is likely to revisit the question of when, if ever, it makes sense for society to discriminate against gay couples or individuals. The Second Circuit Court of Appeals in effect decided that the answer is virtually never. Homosexual men and women, it reasoned, have been subject to such long-lasting prejudice and persecution that any law affecting them must be presumed invalid unless government can show a very good reason for adopting it.
Hollingsworth v. Perry concerns a California ballot initiative that declared “only marriage between a man and a woman is valid or recognized in California.” In Perry, the Ninth Circuit Court of Appeals fudged the issue, holding that California’s decision to offer marriage to gay couples, and then to retract the offer after a popular vote, was so arbitrary that no court could uphold it.