Another interesting day of arguments on marriage equality before the Supreme Court. Again, the justices (except for Thomas) were active in questioning the attorneys.
It seems likely that DOMA will be overturned one way or another. Somewhat surprising, to me anyway, was the amount of time they devoted -- again -- to questions about jurisdiction and standing. Was it proper that the case was even brought before SCOTUS?
This hinged primarily on the issue of federalism. Since marriage is a matter generally left up to the states, what is the federal government's interest in it at all -- first, in having passed the law, and then in ruling on it's constitutionality?
So they could say it's unconstitutional on the grounds that DOMA should never have been passed in the first place. Or they could rule it unconstitutional on the basis of unequal treatment.
One of the curiouser questions was from Chief Justice Roberts. He was rather critical of President Obama and the Department of Justice for having decided that it was unconstitutional and therefore not to defend it in court, and at the same time to continue to enforce it. Roberts said that, if a president thinks a law is unconstitutional, he should not sign it. And if it's already in effect, and he chooses not to defend it, then why does he continue to enforce it?
I think those are both irrelevant questions in this case. Either the chief justice was being theoretical or else he was giving a back of the hand to President Obama, perhaps for his rebuke in the 2011 State of the Union Address about the Citizens United decision.
But look at those questions practically: (1) It was Clinton, not Obama, who signed the law; so there's no way the first question applies. And (2) think what it would mean not to enforce DOMA. To start with, it would change hundreds of regulations for the armed forces about pay, pensions, base housing, etc. And then the whole IRS tax code would have to be overhauled in thousands of places.
Suppose they did all that -- and then a year later, SCOTUS upheld DOMA, and all that had to be undone and rights taken away from people who had recently been given them?
So those are not practical, relevant questions, even if they are interesting to discuss from a constitutional law perspective.
One way or another, DOMA is doomed.
Ralph
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Other reasons it seems reasonable for a president to ask SCOTUS to rule on the constitutionality of a law:
ReplyDelete1. that is the primary job of SCOTUS, isn't it?
2. If he just didn't enforce it, it would still be the law of the land, and the next president might decide he would enforce it.
This seems so simple that it puzzles me why Roberts made such a deal about it. He's a very smart man. Seems like he's got a bee in his bonnet, and I can only think it's a slap back at the president for the smack-down he gave SCOTUS over Citizens United.