Yesterday, Massachusetts Attorney General Martha Coakley filed a challenge to the Defense of Marriage Act (DOMA) in federal court. This is the statute in which the federal government declared that states need not recognize gay marriages recognized by other states, and that it (the federal government) will not recognize gay marriages as marriages.
[States have the right to sue the federal government, and they even have special standing to do so. In other words, they have special power to get a case into court that private individuals don't have. That principle established in Massachusetts v. EPA, a case from a couple of years ago in which the Commonwealth clobbered the Bush administration.]
I’ve made two bold public predictions this year. Back in March, I predicted that Justive Souter’s resignation was imminent. And before the NHL playoffs started in April, I predicted that the Penguins would win the Stanley Cup. Emboldened by the accuracy of those two predictions, I am now predicting that the Supreme Court will strike down DOMA as unconsitutional in the next few years. In fact, I predict a decisive majority, at least 7-2.
Are the supremes hostile to gay marriage? I think so. I suspect all of them are against it, except maybe Ginsberg and/or Breyer. But those who I imagine are the most hostile on a personal level to gay marriage are also the ones who are most committed to federalism. If someone like Scalia votes to uphold DOMA (I’m picking on Scalia because his dissent in Lawrence v. Texas struck me as incredibly homophobic), he would have difficulty maintaining credibility as a federalist next time there’s a close question of states’ rights.
DOMA represents a pretty sharp federal intrusion into state police powers. Upholding DOMA would have to mean hypothetically upholding a reverse DOMA. That is, it would have to accept federal legislation telling states that they need not recognize other states’ straight marriages, and declaring that the federal government does not recognize straight marriages. I find it inconceivable that such a law could be upheld.