Next year, the Supreme Court will have its first opportunity to weigh in on same-sex marriage, as House Speaker John Boehner (R-OH) has filed an appeal in one of the many cases in which the Defense of Marriage Act has been found unconstitutional. Though numerous cases are advancing, House Republicans appealed the pair of cases from the First Circuit: Gill v. Office of Personnel Management and Massachusetts v. HHS. In the filing, Boehner’s attorneys continue to ignore the reality of same-sex families, arguing that Congress did nothing to harm or discriminate against them:
DOMA does not bar or invalidate any marriages but leaves states free to decide whether they will recognize same-sex marriage. Section 3 of DOMA simply asserts the federal government’s right as a separate sovereign to provide its own definition which “governs only federal programs and funding.”
Congress, of course, did not invent the meanings of “marriage” and “spouse” in 1996. Rather, DOMA merely reaffirmed and codified the traditional definition of marriage, i.e. what Congress itself has always meant — and what courts and the executive branch have always understood it to mean — in using these words: a traditional male-female couple.
In addition, the filing argues that Congress wanted to save money by simply not paying for the tax benefits same-sex couples would be afforded with marriage equality. Besides the blatant discrimination inherent in that argument, there 1,138 federal rights, benefits, and privileges that are denied to couples under DOMA. Republicans’ interest in “traditional marriage” ignores the millions of same-sex couples raising families who are denied the same securities and protections as their heterosexual neighbors.
This DOMA case may not be the Supreme Court’s only opportunity to weigh in on marriage next year. Proponents of California’s Proposition 8 have also promised to take their case to the Supreme Court, though they have not yet filed such an appeal. It is possible, though, that the Court could rule in favor of equality in both cases without mandating a right to same-sex marriage. For Proposition 8, the Justices could simply rule that it’s unconstitutional for a state to revoke a right like marriage equality after it’s already been granted. Similarly, the Court could overturn DOMA, requiring the federal government to recognize same-sex marriage but not mandating that any state to do the same — navigating the so-called “Alabama Problem.” Regardless, it will be an interesting year for human rights jurisprudence.