The Supreme Court does marriage — episode 2

Today, the Supreme Court hears oral argument in U.S. v. Windsor. The case presents the question of whether the Federal Defense of Marriage Act (DOMA) is constitutional. The U.S. government argues that DOMA, enacted by Congress with broad support and signed into law by President Clinton, is unconstitutional.

The case also presents issues of jurisdiction and standing. Specifically, the Court is called to decide whether the Obama administration’s unwillingness to defend DOMA deprives it of jurisdiction, and whether the Bipartisan Legal Advisory Group of the U.S. House of Representatives has standing to defend DOMA.

Similarly, the Prop 8 case argued yesterday presented a challenge to the standing of those defending the decision of California’s voters to define marriage as between a man and woman. Apparently, when it comes to same-sex marriage, left-wing politicians not only want to override the democratic process, they would like to bypass Supreme Court review as well. I doubt that same-sex marriage is not alone in this regard.

Ed Whelan provides a useful preview of today’s argument. Ed concludes:

If yesterday’s argument in the Prop 8 case is a reliable indicator, there ought to be at least five justices who are very skeptical of the attack on DOMA. If, however, any of those five justices seems receptive to the badly confused federalism argument against DOMA, the state of play might be very different.


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