In a battle that only lawyers and marriage debate partisans (like me) could love, federal appellate court judge Alex Kozinski has been sparring with the Obama DOJ over whether the government must (or even can) provide federal benefits to the same-sex partner of a staff attorney for the 9th Circuit (Kozinski’s court). You can find good accounts of the issue here and especially here; I’ll refer you to those and not rehash their good work.
Whatever happens with this case, though, it’s become increasingly clear to me that some case involving same-sex marriages — either directly or indirectly — is going to reach the Supreme Court sooner rather than later. For relentless coverage of the legal landscape relating to this issue (and of the many cases that might get to the high court), there’s no better place than Proposition 8 and the Right to Marry. The site chronicles almost every procedural and substantive development on cases from Massachusetts and California (to name two of the likeliest to come before the Supreme Court), and provides a rich source of links to official documents, reporting, and legal analysis.
This development may or may not be good news for the marriage equality movement; historically speaking, you’d have to say that this is a bit early. The Court doesn’t like to get ahead of social changes by much (by the time it declared bans on interracial marriage unconstitutional, only a handful of states still had them), but things move faster than they used to, and people are more mobile than they were. So all kinds of questions of interstate recognition of same-sex marriages keep popping up (often in the context of divorce, as I wrote here and here), and these create problems because of DOMA.
Of course, Congress might be able to stall the Court’s participation by repealing DOMA, but that move is a ways off; so far off, in fact, that Barney Frank won’t even co-sponsor the legislation leading to its repeal. So DOMA’s constitutionality may be the vehicle for examining the ban on same-sex marriages more comprehensively. And when that happens, it will likely be up to Justice Kennedy, as it so often is. The other eight are likely set, four to a side, making Kennedy an audience of one for the advocates. Is this really what anyone wants?