As interesting as today’s Supreme Court arguments over California Proposition 8 were, with all of the different options of what arguments to take and what effect they would have, it’s tomorrow’s arguments over DOMA which are likely to have a bigger impact on the status of gay couples in the US, I reckon.
It seems like the likely outcomes of today’s case will, at most, restore access to same-sex marriage in California and, perhaps, other states with marriage-in-all-but-name-only civil unions. Now this is important, a significant step against the concept of “separate but equal” institutions, but it will grant no actual additional benefits on anyone (besides perhaps foreign recognition of their marital status.)
For tomorrow’s arguments, the most likely change-the-status-quo result seems (to these non-lawyerly eyes) to be striking down section 3 of DOMA, the section that says that the federal government will not recognized same-sex marriages. After all, deciding who is married has traditionally been the role of the states, and choosing what to recognize is the sort of federal power grab that conservative judges have traditionally looked down on. So what happens if it gets struck down? Instantly, all the people who live in the various US jurisdictions that grant same-sex marriage will have access to the full federal benefits of marriage, and they are considerable. Next, all of those states that offer civil unions on a separate-but-equal argument will find that they are no longer as equal as they can make things, as granting “married” status also grants the federal benefits. It shouldn’t be hard to use that as a strong argument in legislatures that legal marriage should take the place of civil unions.
And for states that don’t even have civil unions, suddenly what they are doing is failing to give their citizens access to a federal benefit that citizens of other states get. That’s not something that will win over the most confirmed anti-same-sex-marriage states, but it’s another argument to be made in building the case.
Interesting times, my friends. Interesting times.