What will the Supreme Court decide first: whether states can deny same-sex couples the right to marry or whether the federal government can refuse to recognize same-sex couples’ valid marriages under state law? Now that the U.S. 9th Circuit Court of Appeals has declined to rehear Perry v. Brown, the challenge to California’s Proposition 8, and the 1st Circuit has ruled Section 3 of the federal Defense of Marriage Act, or DOMA, unconstitutional, that question has taken on an increased sense of urgency. Although Perry may provide more dramatic and compelling litigation, the DOMA cases present the Supreme Court with the best way forward.
First, the DOMA cases introduce fewer political complications, teeing up the relatively limited question of whether the federal government can deny recognition to existing marriages. The plaintiffs have challenged only Section 3 of DOMA, which prevents the federal government from recognizing same-sex spouses. Section 2, which largely restates existing principles regarding interstate recognition, is not at issue. If the court agrees with the 1st Circuit on Section 3, states with marriage equality would have their laws recognized by the federal government. States without marriage equality would be unaffected; such a ruling would neither require them to issue marriage licenses to same-sex couples nor compel them to recognize marriages from other states. The political backlash, therefore, would probably be relatively limited.
Perry, on the other hand, raises the prospect of a decision with nationwide implications. Plaintiffs’ attorneys Ted Olson and David Boies have analogized Perry to other landmark civil rights cases, most notably Loving v. Virginia, in which the Supreme Court struck down interracial marriage bans. Consistently championing their clients’ fundamental right to marry, the Perry lawyers seek to bring marriage to same-sex couples nationwide. With only six states and the District of Columbia currently issuing marriage licenses to same-sex couples, they are asking the court to strike down laws in the majority of the states. The court is typically resistant to such sweeping action, and the political fallout from such a decision could be substantial.
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