DOMA and Prop 8 at the Supreme Court: 8 Things to Watch For

2doma_scotus1. Standing and Jurisdiction:
 Are the cases properly before the Court? Remember, the question in the Prop 8 case is whether the California citizens who wrote Prop 8 (the "proponents") had standing to appeal Judge Walker's original ruling declaring Prop 8 unconstitutional. The questions in the DOMA case are (a) whether Edie Windsor, having won at the Second Circuit, can both win and appeal, and (b) whether House Republicans are properly taking the role of defending DOMA. If the answer to any of those questions is NO, then the cases get tossed and the Court doesn't have to rule on anything substantive. We still win, sort of.

2. Scrutiny: The first substantive question is about the level of scrutiny, which is like asking: OK, before we see if you passed the test, we have to determine the passing grade. It's obviously a lot easier to pass when all you have to do is get a 50/100, and harder when you need a 90. If the Court takes the unlikely step of agreeing with President Obama (and rational legal thought) that discrimination on the basis of sexual orientation demands heightened scrutiny" (say, an 80 on the test), then look for DOMA and Prop 8 to be declared unconstitutional. Notably, denying already married couples federal benefits and preventing them from marrying in the first place are both so irrationally ridiculous, look for a substantive holding — if the Court gets there — that rejects the laws under any standard.

3. Equal Protection: This will be the basis for any substantive holding: that DOMA and Prop 8 fail to treat similar people equally for no good reason. We know this argument well, and even the Prop 8 Proponents' main witness, David Blankenhorn, recanted his views and now agrees that all couples, gay or heterosexual, should be treated equally. One thing to look out for in this part of the decision is the fate of the "slutty heterosexual" argument. This is the argument that we need marriage only for opposite-sex couples because they are the only ones that can have "accidental pregnancies." Gay couples cannot. The logic of that as a rationale for denying gay couples the honor of marriage doesn't pass the laugh test, but it is a notable argument because it turns around the stereotype of the sex-crazed gay man and places that noose around the neck of heterosexuals!

4. Breadth of the Decisions: How far did the Court go? It could get rid of DOMA entirely, or keep us in this strange state of flux where DOMA is ok in some places and unconstitutional in others. In Perry, the Court could restrict its decision to California, or it could reach those seven other states that having "everything but" marriage, or it could hand down a national right to marry. In addition to this narrow way of looking at the decision — what lawyers call the "holding" — take note of the Court's language and its statements, or lack thereof, touching on gay equality and membership in American society. These are the words, coupled with the holdings, that will serve as the bases for future victories. The broader the language — "Our system of government does not countenance discrimination on the basis of status," for example — the stronger precedent it will be in the future.

5. Federalism: Did the Court narrow its holding by focusing solely on the violence done by DOMA to the concept of federalism? DOMA, by creating for the first time a federal definition of marriage, took away power that is traditionally and exclusively left to the States. The Court could find DOMA unconstitutional on this ground, but it would lessen the case's impact on future gay rights litigation.

6. Amici: Did the myriad "friends of the court" briefs have any impact? Sometimes, we see direct citations to amicus briefs and sometimes we see the Court learning from the arguments, data, and perspectives offered by amici. It is worth noting if data provided by the Williams Institute, a gay community research institution at UCLA, made it into the decision, for example. That will go a long way to telling us what the Court ultimately decided.

7. Politics: To what extent did our recent political victories — from the 13 states with the freedom to marry to the wave of public officials and senators that endorsed marriage equality — play a role in the decision? On the one hand, conservatives could use our new-found support as a justification for not getting involved, preferring to allow the political process, which they can say we are winning, to run its course. Remember, during argument, the Chief Justice sarcastically noted that senators were "falling over themselves to" support us. (Of course, that argument misses the point that after a few more blue-ish states, the marriage equality state-by-state whistle stop tour runs into the brick wall of arch conservative states.) On the other hand, fence-sitters could see our political victories as cover for making a pro-equality decision without being too far afield from public opinion.

8. Who: Who were the players that made the majorities? A 5-4 decision with Kennedy siding with the liberals suggests something very different than the reverse or a 6-3 decision that includes the Chief Justice. Was Kennedy influenced by his previous gay rights decisions, even though they were based on different parts of the Constitution? Was the Chief moved by his gay family members and the fact that he is going to be sitting on the Court for decades, long after this issue becomes a non-issue? Note the justices' divide at the beginning and you can learn a lot about what you're about to read.

Of course, i will be doing all of this thinking for you. Whether the decision comes down today or Thursday, keep coming back to Towleroad for summary and analysis.


Follow me on Twitter: @ariezrawaldman

Ari Ezra Waldman is the Associate Director of the Institute for Information Law and Policy and a professor at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.


  1. Rob says

    Too many typos to read- I have to quit.

    Point 3 – the the straight people should be the neck of straight people

    Point 4 The precent of the future – do you mean precedent?

    Point 6 – It is worth nothing….Williams institute – don’t you mean “worth Noting”

    C’mon, Ari. This is important.

  2. johnny says

    It always amazes me how little comments Ari’s columns get, yet how many a snippet about Lady Gaga or Madonna or Cher seem to garner.

    This is a huge event/decision that will affect our lives and future generations forever, yet hardly anyone commenting here…?

    The topical vapidity of my gay brethren baffles me.

  3. MikeBoston says

    The decisions of the day are usually released by 10 AM. SCOTUSBlog will be streaming live from the court.

    I bet they schedule more days this week to release the remaining cases. Don’t count on the DOMA and California being released today.

  4. Voet says


    Most sites that do not require people to be identified, (like Towleroad) get a few thoughtful comments by intelligent people, but most remarks are from folks who like to see their words in print. Even the most obtuse realize that comments like “I can’t believe she wore those shoes with that robe” are not really appropriate for a topic of this gravitas.

  5. Jere says

    Ari, you mention 13 states that have marriage equality, but I think it’s only 12 (plus the District of Columbia). Is DC considered to be a state for these purposes?

  6. Pete N SFO says

    Thanks for the bullet-summary; that was really helpful.

    It can’t be lost on the justices that suggesting the decision be left to the states translates into some people never seeing equal treatment under law.

    I want it all; I want a nationwide decision, & I want language in the opinion that says, stop putting civil rights up for popular vote!

  7. P says

    I will be glued to SCOTUSBLOG today at 10AM EST. And I will not expect any of these issues to be decided upon. My only inkling that it could be today is because of Scalia’s temper tantrum this weekend. Especially since justices aren’t supposed to discuss current cases, this makes me think some definitive or decisive action has taken place. But they may have decided but are still writing the opinions. It will happen when it happens, but I sure as hell hope that it is today.

  8. Hey Darlin' says

    I’ve said before anything short of a sweeping decision will trigger many more instances of lawsuits against individual states. It seems aside from DOMA even, that in order for a legally married gay couple to even be able to travel through states that don’t recognize them as a couple would be a “risk” to their union. What happens if a persons family intervenes medically in one of the non-recognizing states. I don’t think it should be a matter of whether or not we go to a “state by state” basis as that will set individual states up for legal battles from the couple from a recognizing state. Won’t it also affect where a legally recognized couple wants to retire and spend those dollars.

  9. says

    Thank You, Ari!

    I’m still baffled by any of the “State by State” arguments. That States have gone out of their way to “not recognize gay marriages from other States” seems to be the most useless heel-dragging idiocy.

  10. BCNKC says

    Rob, don’t be such an ass. I think most of us can figure out what is being said. (I was going to throw in a typo for you but I thought you would enjoy it too much)

  11. Lou says

    The Court will announce opinions on Tuesday around 10am (Eastern time). They could also render decisions on Wed and/or Thur and/or Fri. Since 5 came down today and there are 6 left, they could come out on one day. Given the 3 major ones re DOMA, Prop 8 and Voting Rights Act, easily these could be split along a couple of days, particularly if there are lengthy or multiple dissents and the justices want to read them from the bench.

  12. sfbob says

    After today’s gutting of the Voting Rights Act, the court has one final opportunity to redeem themselves somewhat tomorrow by ruling in favor of equality.

  13. 6/26/13 says

    Archival history. “I have spent much of my adult life in The Bar, in many, varied incarnations. Each did change over time, in its name, its mood, its clientele. But each could be relied on, for a time. Some for a very long time.

    The very word “bar” means something to gay people, gay men in particular, that it does not mean in the wider world. It is not just a place to have a drink. For a very long time it was the only place where one could find other gay people in any numbers, where one could drop the mask one might choose — or be forced — to wear outside and live, by our own rules.

    Most people, even many gay people, have no idea what our lives can be like in these places, what we mean to ourselves and each other there. For too long bars, along with baths and discos, have been disparaged by too many of us as foolish, sinful places, our pleasures there eventually paid for in death. But they were places of wondrous life, places to be celebrated. R. Bebout (1950-2009)

  14. bob says

    While hopeful that the court will decide to eradicate DOMA, and decide equal protection means exactly that… with this court I fear at best a Dred Scott type decision that keeps all of us in the majority states, unrecognized even though we may have gone to a neighboring state to have a legal wedding.

  15. shawnthesheep says

    According to ScotusBlog, the last decision day of the term is today. Not sure why Ari is saying the decision might not come down until Thursday.

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