Prop. 8 or DOMA (or Both): Which Will SCOTUS Take On?

Today the 9th Circuit Court of Appeals declined to hear an appeal to revisit a ruling that California’s ban on recognizing gay marriage is unconstitutional. Via Reuters:

Supporters of the 2008 ban, Proposition 8, have lost two rounds in federal court but have made clear they will appeal to the U.S. Supreme Court and hope for a favorable response from the conservative-leaning court.

The top U.S. court could agree to hear the matter in the session beginning in October, putting it on track to decide the case within a year.

The court kept the ban on hold for 90 days for Prop. 8’s opponents to allow for an appeal to the Supreme Court.

Last week, the 1st Circuit Court of Appeals in Boston declared the federal Defense of Marriage Act (DOMA) unconstitutional for denying marriage benefits to gay couples in states where gay marriage is legal.

So now it’s time to analyze which case the Supreme Court might take up, what its choice might mean, and which case would be preferable to those who are pursuing government recognition of gay marriage.

Ari Ezra Waldman, a Harvard Law School grad who contributes to generally progressive gay blog Towleroad, argues DOMA would be more likely to produce a gay-friendly outcome:

DOMA is uniquely odious to conservative and liberal jurists. To the conservative, DOMA is an example of Congressional overreach: Congress went beyond its specific Article I powers to intrude upon an area of law exclusively and traditionally reserved to the States. To the liberal, DOMA is an example of obvious discrimination that violates the Constitutional principles of equal protection. It denies similarly situated persons the exact same rights that are freely granted -- even, taken for granted -- by other persons.

By taking up DOMA, the Supreme Court wouldn’t necessarily have to decide the entire issue of whether government recognition of gay marriage is a constitutional right. They could confine the ruling to whether the federal government can refuse to recognize marriages that individual states have legally allowed.

Below, Zach Wahls talks to reason.tv about his two moms and the future of same-sex marriage.

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  • Brett L||

    "DOMA is uniquely odious to conservative and liberal jurists. To the conservative, DOMA is an example of Congressional overreach: Congress went beyond its specific Article I powers to intrude upon an area of law exclusively and traditionally reserved to the States. "

    Oh dear FSM, if only this were remotely true.

  • BarryD||

    It is my understanding that the basis for overturning Prop 8 was that it didn't meet the vote threshold for the type of amendment it was, and had little to do with gay marriage specifically. But of course there have been rulings since then, and I don't find reading all of them to be THAT interesting. Someone have an update?

  • ||

    I don't know what to say, except it's much more fun to populate the HuffPo comment threads. Holy fuck, talk about people that love the smell of their own farts!

  • Tulpa the White||

    A foretaste of what Reason will become if I am struck down.

    Repent!

  • sloopyinca||

    You're right. We need you and your logic to keep us in check.

    [rolls eyes]

  • sloopyinca||

    I forgot the /sarc tag. Sorry, man.

  • ||

    Tulpy-Poo's delusions of grandeur are possibly even more hilarious than his Tinkerbell-level insults. How will he entertain us next?

  • Mo' $parky||

    I like how last week he said that some kid couldn't possibly have come up with a solution to an old math problem because he himself wasn't able to solve it. That was pretty classy.

  • ||

    And that's entertaining! See, he's like an unintentional Carol Burnett.

  • ||

    He really said that? Fuck. I mean, we already knew the guy's a colossal failure at life and all, but that makes me sad.

  • T||

    Repent!

    said the Ticktockman.

  • ||

    My farts smell like unicorn kisses and rainbows.

  • Mo' $parky||

    So, like a horse that's been eating Skittles?

  • ||

    Hahahahaha

  • Banjos||

    Mine don't smell because I am incapable of farting.

  • Mo' $parky||

    Well, that explains the tit expansion sloopy is always bragging about.

  • ||

    sloop is a lucky bastard.

  • sloopyinca||

    Um, yeah. She's not telling the truth. Her tits are getting bigger, though. That's for reals.

  • mad libertarian guy||

    Sloopy, can we have a ruling?

    I bet not only does Banjos fart, but she can clear a room with nary a warning blast.

  • sloopyinca||

    As a matter of fact, she just did.

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