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.”