Regardless of whether the Supreme Court is ready to declare a constitutional right to gay marriage, it has the responsibility to fully recognize the decisions Maryland and eight other states, plus the District of Columbia, have made to allow same-sex couples to wed. There is little other conclusion that could be drawn from the arguments today on the constitutionality of the 1996 Defense of Marriage Act, which banned all federal recognition of same-sex marriages. But whether the justices will find a majority to make such a ruling — or any ruling at all — isn't certain.
The justices showed less squeamishness about ruling on the merits of the issue than they displayed Tuesday, when considering California's ban on same-sex marriage. At least five of the justices, including presumed swing vote Anthony Kennedy, appeared troubled by DOMA for one reason or another.
The case in favor of the law, presented by former U.S. Solicitor General Paul Clement on behalf of House Republicans, was entirely unconvincing. He asserted that the reason DOMA was passed was not to express disfavor on gay unions but rather to preserve uniformity in the federal definition of marriage.
But the goal of uniformity for federal purposes could just as easily have been achieved by deferring to state definitions of marriage. Congress made a choice to create two tiers of marriage — "full marriage and the skim milk marriage," as Justice Ruth Bader Ginsburg put it.
As Justice Kennedy noted, the implications of the federal government making such a choice are not trivial. Some 1,100 federal statutes, dealing with everything from income taxes to Social Security survivor benefits, depend on the definition of marriage. As such, DOMA represents a substantial intrusion into the states' power to define marriage as they see fit.
Solicitor General Donald Verrilli went further, arguing that DOMA violated the Equal Protection Clause of the Constitution. He is just as right about that as the advocates for marriage equality were the day before in making the same argument about Proposition 8, California's ban on gay marriage. The trouble is, that line of reasoning leads the court right back into the thickets the justices seemed so keen to avoid in the Proposition 8 case. After all, if it is a violation of Equal Protection, as Mr. Verrilli says, to treat an opposite-sex married couple differently than a same-sex married couple, why is it not unconstitutional for states to ban same-sex marriages in the first place?
Unless the liberal justices and Mr. Kennedy join together in a decision based on states' rights, the question in the DOMA case and the Proposition 8 case will be whether laws treating gays differently should be subject to "heightened scrutiny," given the history of discrimination against them and their inability to defend themselves through the political process. If justices are reluctant to make a broad ruling on the constitutionality of gay marriage bans, they may find themselves looking for a way to avoid deciding this question, too.
And this case provides them with one. Much of the argument in Tuesday's case centered on whether the appellants, a group of Californians who organized the Proposition 8 campaign in the first place, had legal standing. The first half of today's hearing centered on the same kind of question. President Barack Obama has refused to defend DOMA. Instead, Republican leaders in Congress stepped in to defend the law under the auspices of the Bipartisan Legal Advisory Group. The court went so far as to request that Harvard law professor Vicki Jackson make the argument that the justices have no business reviewing the case in the first place.
Her arguments appeared to gain some traction, even from liberal justices who worry about the precedent set when the executive branch requests an appeal from a lower court decision with which it does not disagree. The court could rule that the appellants lacked standing and allow the lower court decision to stand. That would help the original plaintiff in the case, Edith Windsor, who faced a $360,000 inheritance tax bill when Thea Clara Spyer, whom she had married in Canada, died in 2009. But it would leave the constitutionality of DOMA undecided, just as it may well leave the constitutionality of Proposition 8 undecided.
Ultimately, that might not amount to a huge setback for the cause of gay rights. The political environment is shifting rapidly in favor of equality. But it would be a tremendous blow to the prestige of the court if, presented with the central civil rights issue of the day, it decides to take a pass not once but twice.