The Supreme Court has now put same-sex marriage on the agenda for its November 20 conference. The cases potentially up for review include eight petitions dealing with the Defense of Marriage Act, one dealing with California’s “Proposition 8,″ which defines marriage in the traditional way, and one dealing with an Arizona law similar to DOMA that restricts marital benefits for state workers to married heterosexual couples only.
The Court has not said which case, if any, it will review. But the Obama Administration is actively encouraging the Court to pick the case that is most favorable to the anti-DOMA forces. As ScotusBlog reports: “Solicitor General Donald B. Verrilli, Jr., in a new brief, said the Second Circuit Court case of Windsor v. United States is “the most appropriate vehicle” for review of DOMA’s ban on federal benefits for legally married same-sex couples.” Windsor just happens to be the Circuit Court decision that has applied the toughest scrutiny to DOMA and, unlike a competing First Circuit case, Elena Kagan need not recuse herself from this one.
It’s slightly odd for a president, who is charged to “take care that the laws be faithfully executed,” to devote so much of the Solicitor General’s energy to striking down a federal law; particularly since it is a law that embodies the very definition of marriage that Barack Obama espoused on the campaign trail in 2008. Are we to believe that the president’s “evolving” understanding of marriage has now rendered DOMA unconstitutional? So obviously unconstitutional that it trumps the president’s duty to faithfully execute the law?
I’ve posted earlier about Windsor. I have some concerns about DOMA from a federalism point of view, but Windsor is not a Tenth Amendment decision. If it were, the administration wouldn’t touch it. Rather, Windsor creates a rule of heightened scrutiny for any legislation that might affect gays, since they are a “politically powerless” class; a dubious proposition if ever there was one.