Thursday, March 28, 2013

Arguments in United States v. Windsor, some thoughts

Having listened to and read arguments in United States v. Windsor I'm now even more glad I'm not on the court. I'm intensely curious about what the justices will do.

This, as (I think) Justice Kennedy points out, really is "uncharted territory" (or maybe "waters", honestly can't be bothered to go back to the PDF to check; I have a lot to do today). As questioning made clear at the beginning, on the issue of standing (that is, before they even arrived at the merits of the case), it is really, really odd that this case is before the court at all.

Both the government (the defendant) and Edie Windsor (the plaintiff) agree that DOMA is unconstitutional. The appeals court that heard the case agrees it is, too. Normally, that would mean that the government would just pay up, DOMA (at least section 3) would go away, and federal benefits would accrue to lesbian and gay married couples as they do to their heterosexual counterparts.

But, no, the Obama administration wants SCOTUS to rule on this case once and for all. And the court is--understandably--annoyed about this. If they do, it sets all kinds of precedent. If they don't, they look like mealy-mouthed wusses.

I bet there's been some bad language in the SCOTUS equivalent of the Green Room. (Tiring room? Robing room?)

On top of that, the conservatives on the court, e.g. Scalia and Alito (I can't speak for Thomas, the man never even speaks for himself; Roberts is too canny to read) are between a rock and a hard place. I know in my bones Scalia would love to find a way to not permit marriage equality...but there's that pesky states' rights question: who the fuck is the federal government to declare rules about marriage? (I'm talking about DOMA, of course.)

This is a fascinating case.

However, I'm more sure than ever that by July lesbian and gay couples who are legally married will have access to the same federal benefits as straight couples.

Then the games really begin.

  • What happens when a couple marries in Iowa and goes to lives in Texas and demands insurance benefits from an employer?
  • What happens when a domestic partnership couple in Oregon demands federal benefits?
  • What happens when a couple in Mississippi sues the state to allow them to get married?

Marriage equality is inevitable. The big question, though, is how it will actually happen. And when.

Now we wait...
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