Beliefs of the Justices of SCOTUS. Comparison of DOMA with a similar case:
Strict constructionists justices on SCOTUS base their decisions on their interpretation of what the language of the U.S. Constitution meant when it was originally written. They are thus relatively insensitive to public opinion. However, the more liberal justices view the Constitution as a living document that must be interpreted in terms of the present culture and how much it has evolved since the late 18th century when the Constitution was written.
In 1967, Loving v. Virginia was decided by SCOTUS. It is probably the most similar previous case to the DOMA challenge. Loving dealt with inter-racial marriage. It also involved the definition of marriage. At the time, individual states had different laws governing who was eligible to marry. In 1967, SCOTUS ruled that the anti-miscgenaton laws on the books in 16 contiguous south-eastern states that prohibited inter-racial marriage were unconstitutional. Inter-racial couples became free to marry anywhere in the U.S. At that time, about 72% of American adults were opposed to interracial marriage and 48% felt that marrying a person of another race should be prosecuted as a criminal act. Comparing these data with SSM -- as of late 2012 -- about 54% of American adults support same-sex marriage, while about 46% are opposed.
The 2012 appeals to SCOTUS will probably not have any impact on which states will allowing same-sex couples to marry. However, SCOTUS may decide to repeal DOMA and make same-sex couples and their children eligible for about 1,140 federal government programs as long as their marriage is recognized in the state where they reside. That would be a major advance towards marital equality.
Beliefs of the American public towards DOMA:
During 2011, the Human Rights Campaign -- a LGBT-positive group -- joined with Greenberg Quinlan Rosner Research to determine public opinion among American adults on DOMA. They found:
51% of American adults oppose the DOMA law; 34% support it.
60% favor social security being extended to same-sex married couples; 34% are opposed.
58% favor federal employee health insurance for same-sex married couples; 36% are opposed.
64% favor housing protection in medical emergencies; 28% are opposed.
55% favor joint tax filing; 38% are opposed. 1
For decades, support in general for SSM has been increasing. The above percentages in support of SSM are almost certain to have risen since the survey was taken in 2011.
Beliefs of U.S. Constitutional law experts towards DOMA:
A group composed mostly of law professors assessed the beliefs of 485 U.S. constitutional law professors during the summer of 2012. They posted the results on The Volokh Conspiracy web site: 2
When asked: "As a policy matter, do you think states should legalize same-sex marriages?" 87% of constitutional law professors support marriage for same-sex couples; 8% are opposed.
When asked: "As a policy matter, do you support federal recognition of same-sex marriages legalized by the states?" 87% say yes; 8% say no.
When asked: "Section 3 of the Defense of Marriage Act (DOMA) forbids the federal government to recognize same-sex marriages legalized in the states. As a matter of federal constitutional law, do you believe the federal government may refuse to recognize same-sex marriages legalized in the states?" 69% believe that the federal DOMA act is unconstitutional; 16% say it is constitutional.
With results like these, -- and by the overwhelming number of lower federal courts that have found at least Section 3 of DOMA unconstitutional -- one might assume that SCOTUS is certain to overturn DOMA. However, commentators have noted that over the past two or three decades, each retiring Justice of SCOTUS has been replaced with a justice with a more conservative political philosophy. Thus, the court has moved steadily in a conservative direction.
2012-DEC-07: Decision by the U.S. Supreme Court (SCOTUS) on whether to hear one or more of the three cases:
The Justices announced on 2012-DEC-07 that they have granted certiorari to one of the three anti-DOMA cases appealed to SCOTUS. "Granting certiorari" to a case means that the Supreme Court will hear arguments and eventually rule on it. They chose the case launched by Edith Windsor of New York State in the Northern New York District Court which was later appealed to the 2nd U.S. Circuit Court of Appeals. The case involved the matrimonial home shared by Edith and her spouse who were married in Canada and whose marriage was recognized in the State of New York where the couple lived. Edith inherited the home after her spouse died, and was required by the IRS to pay over a third of a million dollars in inheritance taxes because of DOMA. If her spouse had been male, there would have been no inheritance taxes.
Both the District Court and Court of Appeals determined that the federal DOMA law is unconstitutional.
The case is scheduled to be heard during the court's 2012/2013 session, during late 2013-MAR. Their ruling is expected during 2013-JUN.
At the same time, the Justices granted certiorari to a separate case that also involves SSM. It is Hollingsworth v. Perry (formerly called Perry v. Schwarzenegger). This is a
lawsuit challenging the constitutionality of a famous citizen initiative in California -- Prop. 8. This referendum narrowly passed in 2008-NOV. It terminated future same-sex marriages in the state.
Past voting patterns make it quite possible that the four strict constructionists on the Court will uphold DOMA's constitutionality, while the four liberals will find it unconstitutional. Justice Kennedy -- who is generally recognized as a conservative but who occasionally votes with the more liberal justices -- may well cast the deciding vote, leading to a 5:4 ruling. Whether the decision will be for or against the constitutionality of the federal DOMA law is impossible to predict.
The SCOTUS order of DEC-07 states: 3
2012-DEC-17: Statement by Senator Kirsten Gillibrand (D-NY):
Senator Kirsten Gillibrand (D-NY), an original co-sponsor of the Respect for Marriage Act in the Senate and a leading champion of the successful "Don’t Ask Don’t Tell" repeal, released the following statement after the U.S. Supreme Court agreed to hear a pair of cases challenging California’s Proposition 8 and the federal Defense of Marriage Act:
"Today’s decision to hear these two cases on same-sex marriage in the nation’s highest court is truly historic. Already, first and second circuit federal appeals courts have deemed DOMA unconstitutional, and I am pleased the Supreme Court will soon have its voice heard on this important issue. Regardless of the Court’s ultimate decision, Congress will need to do its job too. It is well past time for the federal government to recognize the marriages of all loving and committed couples and finally put the discriminatory DOMA policy into the dustbin of history." 4