At SCOTUSblog, Tom Goldstein has some shrewd observations on the same-sex marriage cases before the US Supreme Court, US v. Windsor (a challenge to the Defense of Marriage Act) and Hollingsworth v. Perry (involving California's Proposition 8).
Students of Windsor and Hollingsworth have always recognized a basic tension between the theories of gay-rights advocates in the cases. The challenge to DOMA is undergirded by a sense that marriage is a matter for state rather than federal regulation. The challenge to Proposition 8 is a direct challenge to just such a decision by a state.
Yesterday and today, the irresolvable depth of that tension in this Court became obvious. The arguments would be easier for the public to understand if they had occurred in reverse.
A majority of the Court seems poised in Windsor to invalidate DOMA Section 3 on the theory that the federal government has no interest in adopting a definition of marriage applicable to 1100 statutory provisions that as a practical matter alters the very nature of what it is to be “married.” That role, the Court will rule, is historically reserved to the states. So DOMA is a federalism case.
Some thought that Justice Kennedy would want to carry forward the project of Romer and Lawrence and be remembered eternally as the hero of gay rights. But they appear not to have fully grasped the concerns of a mainstream conservative Justice with taking so fundamental a step as finding a constitutional obligation to redefine so basic a social institution based on social science that to some appears quite new.
But if DOMA is going to be decided as a federalism case, Hollingsworth becomes a much harder case for the plaintiffs. That ruling in Windsor implies that California should have a parallel right to decide the definition of marriage for itself – i.e., that Proposition 8 should be upheld
