I'm actually surprised that DOMA, which was passed in 1996, has survived as long as it has. Yes, I know that both houses of Congress passed it, but Congress passes unconstitutional nonsense all the time, which is sort of why the Supreme Court exists at all. And please don't remind me that President Clinton signed it. As subsequent events conclusively demonstrated, few marriages were more in need of defending than Bill Clinton's.
For my newer readers, I'll quickly explain my views on same-sex marriage.
I have a basic test that I apply to any law, proposed or already in effect. That is "Is this something that a reasonable adult should give a shit about?" If the answer is no, there's really no reason that the government should give a shit about it, either. In such cases, I support giving the people the right to do whatever they please.
Then I decide whether the law is constitutional. Even the best law ever is a giant waste of everybody's time if it doesn't conform with the supreme law of the land.
As far as gay marriage goes, there is no reason for the government, especially the federal government, to give a shit. If "the family" needs the force of the feds to defend it, it's already doomed. The government did a remarkably poor job in defending the World Trade Center, which was at least a physical thing in a specific location, two things "the family" decidedly is not.
Having said that, I do understand that homo hitchery might offend your religious sensibilities. Too bad. Just as is true with the family, the federal government doesn't exist to defend your personal superstitions. Besides, the same government that can protect your religious beliefs can also limit them. Moreover, if you need curs like your average politician to affirm your spirituality, you're probably going to hell, anyway.
Religion is a deeply personal thing and government is about as impersonal something can get. Nothing good ever comes from intermingling the two. You know when I'll be okay with the government policing marriage? When the states are allowed to resume burning witches.
DOMA is unconstitutional on its face and no one has ever seriously argued that it isn't. Article IV, Section of the Constitution is better known as the Full Faith and Credit Clause, which compels the states (as well as the federal government) to respect the "public acts, records, and judicial proceedings of every other state."
Since marriage is a public act and often a judicial proceeding, DOMA couldn't be more clearly in violation of the Full Faith and Credit Clause.
Through DOMA, the federal government also violates the "due process" clause of the Fifth Amendment, since it voids liberty granted by the state in any other state or before the federal government without due process of law.
Marriage is also a public act, with very specific government benefits, primarily - although not exclusively - through the tax code. When the federal government limits those benefits to a certain class of citizens, absent a compelling state interest, it violates the "equal protection" clause of the Fourteenth Amendment, of which the language is very clear.
If corporations and George W. Bush's first presidential campaign meet the definition of "legal persons" under the Fifth and Fourteenth Amendments, it's very difficult to rationally argue that homosexuals don't. That's just a matter of elementary logic.
The Supreme Court has also ruled repeatedly that marriage is a "fundamental right," that the states and Congress cannot deny, even to prison inmates. I suppose that you can argue that prisoners awaiting execution enjoy greater fundamental rights than gays do, but it would be an affront to both common decency and common sense.
You know who, first and foremost, knew that there were severe constitutional issues with DOMA? The people who oppose gay marriage. That's why they've been pressing for a constitutional amendment since 2004.
DOMA is a dead issue constitutionally, unless certain of the justices defy logic, precedent and the clear language of the Constitution to rule otherwise.
Of the two cases coming before the Court, Hollingsworth v. Perry (the Prop 8 case) is the more likely of the two to be ruled upon narrowly, based entirely on the specific circumstances in California. In any eventuality, it's hard to see Hollingsworth having much of an effect on the national gay marriage question.
United States v. Windsor (the DOMA challenge) couldn't be more different. That does have national ramifications, albeit more limited ones than you might think. As an Equal Protection Clause case that challenges Section 3 of DOMA, which defines marriage as being between a man and a woman in the federal law itself.
The Court would have to take a much more expansive view of the law than I think they will to apply a repeal of Section 3 to the states. I just don't think that there's a majority on the Court for that.
The Court could very well strike down Section 3, apply it only to the federal government and ignore the rest of DOMA, which isn't at issue in Windsor.
A much, much stronger challenge would be Section 2, which states that "No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship."
Section 2 is flagrantly in violation of the Full Faith and Credit Clause. There simply is no way to read it otherwise. In fact, Section 2 uses the " public act, record, or judicial proceeding of any other State" language of the Clause to deny its applicability. It's almost impossible to imagine Section 2 withstanding any level of scrutiny whatsoever.
If Section 2 is thrown out, it wouldn't matter what the federal government or the individual states did because recognition of gay marriages would be immediate, nationwide and benefits couldn't be denied by anyone.
Again, I think that both Hollingsworth and Windsor will be decided as narrowly as the Court can manage. I don't expect the victories that other gay marriage supporters want or expect, but affirmative rulings in these two cases - even exceptionally narrow ones - make the next round of cases harder to defend against.
Furthermore, as these challenges continue making their way through the federal courts, more and more states are legalizing same-sex marriage; either through the state courts, the legislatures, and now at the ballot box. American popular opinion is also changing much more quickly than I ever thought it would. Three different polls from just last month show that a majority of Americans now supports same sex marriage, up from just 22% in March, 2004.
No matter what happens, there isn't going to a decades-long controversy, a la Roe v. Wade, that haunts America.
George Will said it best just this past weekend.
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