The courts, the political process, and DOMA

The following contribution to our same-sex marriage symposium is by  Charles Fried.  Educated at Princeton, Oxford and Columbia Law School, Professor Fried is the Beneficial Professor of Law at Harvard Law School, where he has taught since 1961. He was Solicitor General of the United States, 1985-89, and an Associate Justice of the Supreme Judicial Court of Massachusetts, 1995-99. His scholarly and teaching interests have been moved by the connection between normative theory and the concrete institutions of public and private law. As a private lawyer he has argued appeals in many courts, including the Daubert case in the Supreme Court and the case deciding whether the attack on the Twin Towers was one occurrence or two.

—

This litigation is regrettable.  The ideal situation is to avoid a definitive constitutional ruling on the equal protection or due process right to same-sex marriage and to have the matter battled out in the legislative arena, as it was in New York this summer.  Changing attitudes and demographics – younger people tend to favor allowing same-sex marriage – will lead to its general acceptance.  A favorable Supreme Court ruling would abort that political process and cause the issue to fester in political discourse, with the familiar bad effects – particularly in confirmation battles. Lawrence was another matter: penalization was a grave and palpable injustice in every single case. Similarly, I believe that a strong liberty, equality and association claim can be made for allowing same-sex couples to form civil unions with the same legal effects as marriage. Marriage is different only in that it traditionally symbolizes the citizenry’s celebration of the union, and I do not believe people should be forced by a Supreme Court ruling to celebrate what they deplore.  It is like the difference between allowing the legal arrangement and forcing people to come to the wedding.  That said, DOMA is different. Same-sex marriage is allowed in six states and the District of Columbia.

DOMA spells an impediment to what is a legal arrangement in those states. If on no other grounds, federalism concerns militate strongly against it. There is also a strong equal protection claim that some persons legally married in one state should not be denied federal benefits granted to others married there.  Ideally, Congress would repeal DOMA before the case reaches the Court, but with the dysfunctional Congress we enjoy today that is most unlikely to happen. Thus a ruling is unavoidable and its outcome is very likely to be invalidation of DOMA.  That leaves the question of how the Court will reach the result.  Will it rule broadly in favor of a constitutional right to same-sex marriage, or narrowly against the federal discrimination entailed by DOMA?  The latter, preferable form of ruling would leave messy Full Faith and Credit issues to be sorted out. I guess that over time, those would become less acute and disappear altogether.