DOMA to the Supremes?

Having mixed wins vs. the champion of wrong, Paul Clement, the Obama Administration has joined with the other side again in pressing SCOTUS to decide a question before some might think it ripe: DOMA.  Along with informing us of the pleadings, LD discusses the continuing force of Baker v. Nelson dismissed without comment as not offering a substantial federal question back in the day when the Supremes had to dispose of such things somehow other than ignoring them. 

The questions for decision are whether a marriage of two persons of the same sex is authorized by state statutes and, if not, whether state authorization is constitutionally compelled.

Well, that isn't the question here.  The question here is whether a federal statute that denies benefits to a marriage of two persons of the same sex already authorized by state statutes is constitutionally valid.  This should end the case.  It might be reasonable (at best) to argue that a state's ability to not authorize same sex marriage means the federal government can do so in this context too, though the it seems pretty clear that the two sovereigns (if I might call them that) are on different planes here.  Still, that doesn't make them the same question.  One does not block the other.

The other issue is whether subsequent precedent / legal developments changed things so much to override the usual practice of holding such things as binding.  It should be noted that a bare statement that a matter does not have a substantial federal question tells us little.  There could have been some quirk in the case that made that so.  Who's to know?  Surely, we should not expansively read much into it, underlining why somewhat related questions should still be open for lower court review.  Of course, SCOTUS can re-consider stuff anyways, so the question is of only limited importance at this level, if it gets there.

Still, subsequent case law clearly has changed things.  Moving past the state law question, the Baker ruling summarized Griswold:

The basic premise of that decision, however, was that the state, having authorized marriage, was without power to intrude upon the right of privacy inherent in the marital relationship.

But, as Lawrence v. Texas noted, this ruling was soon given a broader reach.  Privacy was not merely a marital right:

“It is true that in Griswold the right of privacy in question inhered in the marital relationship… . If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” 

So, the "basic premise" is broader in scope.  Subsequent law underlined the fact, making its reasoning stale. Also, the quote underlines the different nature of the two cases -- DOMA involves limiting rights even on those already married.  It intrudes upon marital privacy, so much that basic marital privileges might not apply in a federal context.

It is ironic that the ruling cites Griswold (a contraceptives case) to note that marriage is an institution "uniquely involving the procreation and rearing of children within a family."  Factual evidence can be shown to show that this conclusion also has been shown to be false.  But, if this is not good enough, rulings like Turner v. Safley (involving marriage of those in prison) underline that marriage has a broader scope.

Baker does not discuss sexual orientation discrimination, partially since the parties at that time (1971) would have really been grasping at straws (sexual classification litigation was in its infancy).  The court dismissed without comment a First Amendment claim.  Lawrence v. Texas underlined the importance of a broad understanding of intimate association as did other cases, in part using the First Amendment. Again, the law either changed or the questions raised now are not the same.  Ditto the rational basis of partial protection of same sex unions, which was barely imagined back then.  The Prop 8 case, e.g., is simply not the same case.

Baker also rejected an equal protection challenge on sex classification grounds because of the "fundamental difference in sex." Again, "undermined  by later 'doctrinal developments' " to quote the analysis.  Reed v. Reed was not even decided yet (it came later the same year), this being the first case in the modern era to strike down a law as being irrational based on sexual classification. And, eventually, heightened scrutiny was held to be the test, not quite the same as racial, but high enough that the "fundamental difference in sex" were rejected in various cases where traditionally sex was understood to be reasonable.  Thus, the assumption that sex is so determinative has been undermined.  

DOMA cases will eventually get to the US Supreme Court and the "rational basis with teeth" treatment of sexual orientation [House Republicans aside, a valid reading of current precedent*] along with the federalism enhancing nature of the lower court opinions make it a fairly safe bet.  Hey, I was right on PPACA -- well, much of it.  Seriously, I think this is a safe calculated risk by the Administration and the movement lawyers, the arguments as a whole possibly having six votes in this context.  Same sex marriage writ large is harder, but this is less so.

But, the Baker v. Nelson issue is really lame in this context. It is a toothless tiger as a whole, surely so when addressing federal rights of actual marriages.  It is unfortunate that even some supporters of SSM think otherwise.  Overall, society and the law moved on.

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*  Romer v. Evans cited the principle that:

laws of the kind [that] raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected [are invalid]. "[I]f the constitutional conception of `equal protection of the laws' means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest."

The Court did not provide the usual discretion given to economic regulations here or when striking down the same sex sodomy law in Lawrence v. Texas.  Justice O'Connor spelled out what was going on:

When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause.

Yes, only a concurrence of one, but one cited with approval in CLS v. Martinez and  it is a stretch to say it is not the law.  At best, you can say that it is merely persuasive and the matter has not been pressed.  To paraphrase Lincoln's order to Grant, let the matter be pressed then.