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Is DOMA About to Be DOA?

It seems clear that five justices expressed enough dismay at the federal government’s intrusion into an essential state function that come decision time, DOMA will be DOA. In the long-term jurisprudence of gay marriage, however, the Prop 8 decision...
Κείμενο Natalie Elliott

Photo by Elvert Barnes via Flickr By now, after the antigay activists have put away their “Adam and Steve” placards and the 39 steps of the Supreme Court have been swept of those equally irksome pink equality signs, it shouldn’t be too surprising that this week’s oral arguments at the highest court in the land will be remembered more for Justice Ginsburg’s “skim-milk” comparison during Wednesday’s hearing on the Defense of Marriage Act and less for the byzantine debate a day earlier about California’s Prop 8. This was an eventful week, indeed. And anytime nine olds in robes decide whether estate tax rules extend not only to millionaire breeders but to millionaire lesbians too, you know that the arch of history is bending toward justice.


But hey let’s celebrate: it seems clear that five justices (or really just swing vote Anthony Kennedy) expressed enough dismay at the federal government’s intrusion into an essential state function (the regulation of marriage) that come decision time, DOMA will be DOA. And good fucking riddance.

What might have gone unnoticed over the course of the week is that California comes out of the wash as our nation’s most interesting state. It is still our country’s petri dish, our western wind. And that’s why the Prop 8 case, Hollingsworth v. Perry, even though it’s sort of less monumental than the DOMA case, is more important in the long-term jurisprudence of gay marriage. Location, as it turns out, matters. The intervention of the judicial branch means less in California than it did in the 2003 gay rights case Lawrence v. Texas, which banned sodomy laws across 17 states. Here’s why.

SCOTUS is likely to dismiss Hollingsworth v. Perry on jurisdictional grounds, so the 2010 ruling by California’s 9th Circuit Court of Appeals could stand—which still invalidates Prop 8, the ballot measure enacted 140 days after the state Supreme Court validated gay marriage way back in 2008. Point being: even if nothing happens in the Supreme Court, gay marriage would be legal in California, and all of your strategic profile-pic transformations would have been in vain (which they still sorta are)!

The importance of this case in light of California being a magical gay playground came into discussion during arguments this week in the Supreme Court, during a heated exchange between Justice Alito and Theodore B. Olsen, the lawyer who was arguing that Prop 8 was, in fact, a violation of his clients constitutional rights:


JUSTICE ALITO: "Seriously, Mr. Olson, if California provides all the substantive benefits of marriage to same-sex domestic partnerships, are you seriously arguing that if California—if the state—if the case before us now were from a state that doesn't provide any of those benefits to same-sex couples, this case would come out differently?"

MR. OLSON: "No, I don't think it would come out differently because of the fundamental arguments we're making with respect to class-based distinctions with respect to a fundamental right. However, to the extent that my opponent, in the context of California, talks about child-rearing or adoptions or—or of rights of people to live together and that sort of thing, those arguments can't be made on behalf of California because California's already made a decision that gay and lesbian individuals are perfectly suitable as parents, they're perfectly suitable to adopt, they're raising 37,000 children in California, and the expert on the other side specifically said and testified that they would be better off when their parents were allowed to get married."

The fact of the matter is, as a country, we only need SCOTUS to hear this case, and to decide in favor of Kristin Perry and Sandra Stier (the above-mentioned millionaire lesbians), and all of the marriage-license-seeking same-sex couples of California, only to establish precedent. And a very nondisruptive precedent at that. Almost nothing gets done in the Supreme Court without a minor case sacrificing itself at the altar of Justice before the dazzling, spotlight-stealing case comes along. This fact is constantly mentioned in SCOTUS opinions and came up several times Tuesday as Mr. Olson described the precedents set in the original marriage-legalization case, Loving v. Virginia in 1967, which permitted interracial marriage despite a century of antimiscegenation laws. As Justice Ginsburg carefully noted, before Loving, there was the lesser-known McLaughlin v. Florida, which established interracial cohabitation as legal—but nothing else.


What’s happening now with the attention devoted to Hollingsworth v. Perry is, largely, hype. This isn’t going to be the case that changes the world. It’s just going to be the case that gets us maybe a little bit closer to that thing we want. SCOTUS is terrified of making a sweeping, nationwide decision on gay marriage—a few Justices raised questions as to whether, unlike, say, the Loving decision, the benefits of same-sex marriage as a social institution are unproven. It’s proverbially “too soon.” Yes, in essence, that’s an argument for at least another 50 years of exclusion, but it’s a simple fact that this branch of government operates on exactly that—history and evidence. Lest we need a reminder, here’s our friend Justice Antonin “Are You Talking to Me?” Scalia again:

MR. OLSON: "The California Supreme Court, like this Supreme Court, decides what the law is. The California Supreme Court decided that the Equal Protection and Due Process Clauses of that California Constitution did not permit excluding gays and lesbians from the right to get married—"

JUSTICE SCALIA: "You—you've led me right into a question I was going to ask. The California Supreme Court decides what the law is. That's what we decide, right? We don't prescribe law for the future. We—we decide what the law is. I'm curious, when—when did—when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes—some time after Baker, where we said it didn't even raise a substantial federal question? When—when—when did the law become this?"


MR. OLSON: "When—may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools."

JUSTICE SCALIA: "It's an easy question, I think, for that one. At—at the time that the Equal Protection Clause was adopted. That's absolutely true. But don't give me a question to my question."

OK, so Scalia’s strict constructionist assholery is not an example of anything other than his uncanny ability to sound like a smarmy high school vice principal. But still, his is closer to the prevailing attitude on the bench, and certainly more representative of the prevailing national attitude. The reason why landmark gay rights cases like Lawrence v. Texas blew the doors off national Civil Rights was because the change occurred in hardnosed, right-wing palaces of conservatism like Houston, Texas. Until the theater for social change is somewhere less, oh, let’s say, expected, then it could cause hardly a tremor. So, just don’t be too disappointed if things end up staying the same in California. From the looks of things, it’s not so bad there right now.

_Previously:[ All the New Gay Boys](

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