Based on what I’ve heard and read about the oral arguments presented this week before the Supreme Court re. the whole gay marriage issue, it looks like the Court will be pretty stingy on what it may rule on come June.
Several times during Wednesday’s discussions regarding the federal Defense of Marriage Act or DOMA, several judges pointed out that it appeared that DOMA had been passed by Congress on discriminatory grounds as a way to get back at homosexuals, and that, in any event, it was the states, not the feds, that have the power to legislate marriage. And Tuesday’s arguments generated a number of responses from the Court which, while sympathetic with the situation of gays in California, sounded like it did not feel the time was right to make a sweeping decision that would affect marriage nation-wide.
So, what do I think will happen come June?
DOMA will be knocked down which means same sex couples married in states where same sex marriage is legal will be entitled to the same federal spousal benefits enjoyed by legally marred str8 couples: federal joint tax returns, Social Security survivor benefits, and exemption from federal estate taxes, BUT the question of same sex marriage will remain in the domain of the individual states. That means in the Bible Belt and the South (despite all the gays in South Florida, for example), it may never happen, and it was more than hinted that if the Supreme Court were to take this on again, it would only do so if a majority of the states had gone gay.
My other concern is that in ruling in favor of same sex marriage in California, the Court may dictate or recommend that decisions from here on in be made via a referendum of the voters of that state not by court or legislative fiat, as was the case in New York. In fact, in only three of the nine states where same sex marriage is legal was it made legal by a majority of its voters. Could we actually lose ground instead of gaining?
More immediately, does a ruling against DOMA but for states rights mean if you and your partner really really want the federal perks and live in a state where gay marriage is not legal, you may have to give up your jobs, homes and whatever else and move to a state where it is? A lot will depend on where the two of you are in your lives, careers – and commitment to one another.
But in my mind, the hope by gay activists that the Court will wave a magic wand and force same sex marriage overnight in all 50 states just ain’t gonna happen.
At least not yet.