Judicial Review Times Two

[l33tminion]

Gay-marriage stuff has reached the Supreme Court a bit sooner than I'd thought. Things worth noting from the arguments:

Scalia's question of when bans on gay marriage became unconstitutional. Really wish Olson was willing to bite the bullet and say 1868 (just as bans on interracial marriage became unconstitutional in 1876 but false arguments for why such bans were in fact constitutional didn't finally fall until nearly a century later).

Kennedy's question on whether same-sex marriage bans are gender discrimination. I agree with Somin's argument in that post, they are. The Court has noted that strict scrutiny applies to laws that distinguish based on gender, even if the objective of the law isn't to discriminate against men or women in particular. In this case, the objective of the law is to discriminate against homosexuals, but the distinction it makes is one of gender, not of sexual orientation; in fact, ban proponents seem quite happy to point out that homosexuals are currently (technically) allowed to get married.

It seems likely that the court is going to come up with some sort of hair-splitting ruling (or non-ruling) that leaves the California ban struck down but the state of affairs for the nation in general still ambiguous. Ditto for DOMA. That law has extreme problems on states' rights and full faith and credit grounds, but the present case could well be let stand based on some technicality about standing (since the Obama administration agrees the law is unconstitutional).

Edited to add: Yeah, DOMA is in trouble:

Justice Elena Kagan, whom President Barack Obama appointed to the bench, closely questioned attorney Paul Clement, who was defending the law, about whether DOMA was passed with the specific intent to discriminate against an unpopular minority group. Kagan said anytime a law targets a group of people "that is not everybody's favorite group in the world" it raises a red flag that Congress' judgment was "infected by dislike, by fear, by animus."

Clement refuted that, saying the federal government was forced to take action in 1996 because for the first time, it appeared possible that a state would allow same-sex couples to wed. If a few states allowed same-sex marriage and the others did not, Clement said it would create confusion at the federal level as to how to apply the more than 1,000 laws and statutes that affect married couples.

Kagan interrupted. "Well, is what happened in 1996—and I'm going to quote from the House report here—is that 'Congress decided to reflect and honor a collective moral judgment and to express moral disapproval of homosexuality.' Is that what happened in 1996?"

Kagan's question provoked a few gasps and laughter in the courtroom, but Clement was not caught off guard. "Does the House report say that? Of course, the House report says that. And if that's enough to invalidate the statute, then you should invalidate the statute," Clement said.

And this is the lawyer defending DOMA!