Except for the first one, that is how America looks right now, and it is why the Defense of Marriage Act is doomed. The final example fits the facts of a case the Supreme Court will hear this week, one of two dealing with marriage equality; the other is a challenge to Proposition 8, the California measure banning same-sex marriage. As Jeffrey Toobin writes in Comment this week, there is a great deal of optimism surrounding both: whatever happens in the Court, and even if there are reversals, "The question about marriage equality for all Americans is not if it will pass but when. The country has changed, and it's never going back to the way it was."
But how will that look, legally? If one had to guess, the DOMA case appears to be stronger than the Prop 8 one, and more likely to be the instrument for the next stage in the progress toward marriage equality.
Prop 8 has, in some ways, received more attention, in part because it is about a constitutional right to same-sex marriageand thus could, in theory, result in a single ruling that makes it legal in all fifty states. And maybe that will happen, though it is also possible that it will bring marriage equality only to California.(It also helps, publicity-wise, that the case is being managed by David Boies and Theodore Olson, lawyers who opposed each other in Bush v. Gore.) DOMA might seem a little more boring because it is not, strictly speaking, about stopping states from legalizing gay marriage and people being kept from the altarromance deniedbut about withholding federal benefits and obligations from such couples. The vehicle for it coming before the court is an estate-tax case.(It doesn't help that the pro-DOMA lawyers, formally called the Bipartisan Legal Action Group, are referred to in briefs by the unfortunate acronym BLAG.)
But federal paperwork is the venue for plenty of human drama. Under DOMA, even if same-sex couples could legally marry in all fifty states, the federal government could still pretend they weren't spouses. That is a problem in terms of both equal protection and federalism. At a certain pointone we are already past, given the number of states that have legalized same-sex marriageeven judges who have reservations about same-sex marriage should recognize that either DOMA is unconstitutional or that the more than eleven hundred federal laws, from inheritance to immigration, that rely on a definition of marriage that DOMA has straightjacketed are. And since DOMA makes them nearly impossible to fix, it amounts to the same thing. The language of DOMA
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.
is so inflexible that it is hard to see how Congress could even fix various laws i.e., by amending every piece of legislation by inserting "or spouses under state law") without running into an Escher-esque series of dead ends.
here's the full story :