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Monday, October 22, 2012

Why Judges matter: Is DOMA really doomed?

Chicago DOMA Protest

Responding to the decision by a second federal appellate court that the so-called Defense of Marriage Act is unconstitutional, a decision discussed in detail in the previous post to this Blog, Washington Post editorial writer Jonathan Capehart wrote a column headlined “DOMA is doomed.”

DOMA defines marriage as only between a man and a woman.  Its practical effect is to deny married gay couples the same federal benefits as other married couples, such as federal employee health benefits for spouses and Social Security survivor benefits.  As Capehart wrote: “It’s flat-out discrimination.”

But does that necessarily mean it’s doomed?  We certainly hope so.  But, as the distinguished legal scholar Stephen Colbert put it in discussing another discrimination case: “It’s the time of year again when skeletal figures shrouded in black fill your mind with fear – because the Supreme Court is in session.”

Seriously – the place where past generations turned to right wrongs and end discrimination now is a place that all advocates for equality must view with trepidation.

The court is expected to decide next month whether to hear appeals from the decisions on DOMA.  It also may hear an appeal from a 9th Circuit Court of Appeals decision striking down Proposition 8, the voter-approved referendum that banned gay marriage in California.

On the one hand, Justice Antonin Scalia’s recent contemptuous dismissal of gay rights should add to the fear factor.  On the other hand, Justice Anthony Kennedy, often seen as the court’s swing vote, has shown some sympathy toward gay rights.

The President of the Human Rights Campaign, Chad Griffin, told Capehart: “We are at a monumental tipping point as the Supreme Court stands poised to review a law that has resulted in treating gays and lesbians as second-class citizens.”

The question is: Which way will the Supreme Court tip?

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