So how will President Obama's Justice Department finesse its commitment to gay rights with its precedence-rooted commitment to defend the Defense of Marriage Act? The answer isn't clear, but what is clear is that Justice will take its sweet time trying to figure a way out. The government was surprised that yesterday's decision, in Gill v. OPM, didn't change the scrutiny standard at all -- and the plaintiffs were still able to win their case. Judge Joseph Tauro ruled that because marriage was "the firmly entrenched province of the state," the government could not regulate it without violating the 10th Amendment. (Health care reform opponents will enjoy the logic of this argument.) In a separate and somewhat conflicting ruling, Tauro ruled that DOMA violates equal protection guarantees because it forces the state to discriminate. So -- can states ban gay marriage in Tauro's world?
The Justice Department has been all over the map in terms of its arguments; at first, it continued the Bush-era line that gay marriage is potentially harmful. At this point, it's content to argue that because the federal government grants so many marriage rights, Justice has every right to determine who gets access to federal benefits. This change has led conservatives to accuse DOJ of deliberately watering down its arguments in the hope of essentially throwing away the case ... like a boxer who deliberately takes a fall. I find this too conspiratorial; Justice is trying to make the best argument it can make within the political constraints imposed by the President's political views, which include expansive access to federal benefits for gay people.
Generally, the equal protection case is seen as the strongest, because DOMA was signed into law by politicians who wanted to make sure that gay couples could not get access to federal benefits if their states legalized same-sex marriages or civil unions. Its intent was to deprive a class of people of rights
afforded to another class.
I don't know if this case has the ingredients to create (or recognize) a federal right to gay couples; one presumes that, if this case doesn't reach the Supreme Court, the more compelling challenge could come from a couple who gets married in Washington, D.C., decides to move to Kentucky and demands that Kentucky recognize their marriage ... which Kentucky, citing DOMA, won't.
The prevailing assumption among many gay rights advocates is that there are four and a half votes on the Supreme Court for gay marriage, and the fifth vote will depend upon both the sway of public opinion, which absolutely influences how the justices work, and the quality and elegance of the underlying argument. I don't know if Gill gets them there. But it does, in a sense, advance the line of argument that holds that any sort of discrimination against gays is irrational. That's something the appeals court will take up, and something that the administration will have to figure out how to argue very carefully ...