A US Bankruptcy Court just upheld the constitutionality of the Defense of Marriage Act (DOMA) in In Re Kandu and Kandu. The specific facts of this case seem heartwrenching (both spouses in the lesbian marriage came down with cancer at the same time). Of course, the federal courts cannot allow such matters to influence their decision. However, I still think that time will bear out that DOMA is unconstitutional (to be fair, a US Bankruptcy Court ruling has very little precedential value, so this issue is still wide open).
As state courts continue to hand victories to gay marriage proponents, conservative defenders of traditional marriage have been reeling. The California Supreme Court ruling annulling the gay marriage licenses issued in San Francisco was hailed as a giant victory, when in reality it was a minor issue that was tangential, at best, to whether gay marriage is constitutional or not. This, on the other hand, is a bonafide conservative win.
Meanwhile, the SCOTUS Blog (link via How Appealing wonders if federal challenges to same-sex marriage prohibitions have already been decided. It cites an obscure case (Baker v. Nelson), dealing with a Minnesota challenge to same-sex marriage prohibition. The court's ruling was one line: "The appeal is dismissed for want of a substantial federal question." Gay marriage opponents are arguing that that ruling denies that gay marriage is required under the constitution. But that got me to thinking: Where's the federal jurisdiction for defining marriage anyway?
Justice Paul Snyder (the author of the Kandu decision) answers that question in that opinion thus:
The 10th amendment is not implicated because the definition of marriage in DOMA is not binding on the states and, therefore, there is no federal infringement on state sovereignty. States retain the power to decide for themselves the proper definition for the term marriage.
On the one hand, that seems to me to be an awfully narrow interpretation of what is uncontestably a state matter. Since the federal government defers to the states in every other aspect of marital law, from at what age one can marry to giving out the licenses themselves, singling out gay couples for special federal scrutiny seems to run awful of the court's ruling in Romer v. Evans. On the other hand, why can't the federal government create a seperate class of to hand out its own benefits?
Of course, none of this answers the very valid 14th amendment based objections to DOMA. But its food for thought none the less.