Of The 6 Possible DOMA Court Outcomes, Is Only 1 Of Them Truly Great?

A federal judge may have struck down Section 3 of DOMA, but we aren’t out of the woods yet. Appeals! Supreme Court! Narrow decisions! So many things to be scared of.

Jack M. Balkin plays Choose Your Own Adventure and finds six possible results for Gill et al. v. Office of Personnel Management and Commonwealth of Massachusetts v. HHS. Including the possibility the Justice Department doesn’t bother appealing this month’s ruling, in which case the gays of Massachusetts will get federal benefits, but no other state or city (like Connecticut or D.C.) will. Boo. That’d also cut short the hope of the case reaching the Supreme Court — still a very uncertain arena — where the law could be knocked down entirely. Instead, all the other jurisdictions with same-sex marriage would have to sue the federal government and hope their cases made it farther up the chain.

Of course all of that assumes DoJ won’t appeal, and Balkin makes a good case for why that’s unlikely: “It would leave the Tenth Amendment language standing, which might cause problems later on. Perhaps equally important, it would be politically dangerous for the Administration not to appeal, because it would look as if the Administration was secretly supporting same-sex marriage and deliberately threw the case, or at least, this is how it would be portrayed in the press and by Republicans. Moreover, the 2010 elections are coming up soon, and the Democrats are already weakened by the economy. If the Administration doesn’t appeal, the Republicans will make it a campaign issue.”

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  • Jere

    Adding to the complicated potential outcomes – in her written follow-up to the confirmation hearings, Elena Kagan indicated she might recuse herself if Gill makes it to the Supreme Court. The likeliest outcome in that case is either a 5-3 decision upholding DOMA or a 4-4 split. If it’s a 4-4 split, the decision of the First Circuit remains in effect (whether good or bad for the community).

  • Mike L.

    @Jere: This is sort of unsettling.

  • Scott

    Doesn’t the Supreme Court decide which cases it wants to hear? If a lower court makes a decision that’s unfavorable to gay people all a conservative Supreme Court justice has to do is say no to hearing the case thereby allowing a bad decision to stand. N’est-ce pas?

  • Chris

    Having read the link you sent me about the outcomes, all are quite valid, however the fears the writer has is suspect. What if no backlash happens? We keep running on this fear, which is becoming irrationally dangerous at times. I say dangerous because we cant keep holding our self down because of fear. It is what is oppressing us now. Not the fear of our enemies, but the fear we ourselves have for fighting for our rights, and the inaction it causes amongst us as a community. Even if 90% of the United States, states granted us full marriage equality, there would still be some sort of political backlash if DOMA was repealed and full marriage equality was finally granted to our people. We have to remember that those who fight against us are nothing more than a minority within a minority, albeit powerful, we outnumber them, and as the younger generations grows to adulthood our visibility in the public eye will show them which side of this coin is conscious of reality and which side is morally corrupt.

    We as a people cannot let fear rule us. We are better than that and must stand and fight at every front possible to achieve equality not just for our generation and our people, but for the generations beyond ours and the future disenfranchised minorities that might come to be at the hands of the religious right. Now is the time to make our stand. Our time was yesterday our fight is now. Our people can no longer wait, nor should they, on the heals of inevitability. Time, as Dr. Rev. King was professed “Time is a neutral concept; can be used constructively or destructively. I see more people of ill will use time more effectively than people of good will.” It is time we stop waiting, and stop hoping, and start coming out, being heard, and showing the United States who we really are; all the while fighting just has hard for our liberation.

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