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Supreme Court tackles DOMA, Prop 8; legal experts lay odds on decisions

Published: Saturday, June 8 2013 9:15 p.m. MDT

The U.S. Supreme Court in Washington is seen on June 27, 2012, the eve of its expected ruling on whether the Affordable Care Act passes the test of constitutionality.

Alex Brandon, ASSOCIATED PRESS

In the next two weeks the U.S. Supreme Court will issue decisions on two cases that could fundamentally change what marriage means in the United States.

While no one can be sure what will happen, many experts think the court will strike down the section of the Defense of Marriage Act that defines marriage as between a man and a woman for purposes of federal law.

Most experts also expect the court to avoid making a decision on California's Proposition 8. If the court does sidestep a decision on that case, it will leave in place a lower federal court decision that effectively legalizes gay marriage in California.

But whatever the court decides on both cases, it will not be the final word. The festering conflict between the equality claims of gay marriage advocates and the religious liberty claims of traditionalists seem likely to only intensify.

Down on DOMA

The piece of DOMA at stake defines marriage as between a man and a woman for purposes of federal law, such as taxes and inheritance.

"I think the court will invalidate that section of DOMA, and it may not even be 5-4," said Margaret Russell, a law professor at Santa Clara University in California.

Russell thinks the court will rule that DOMA creates two separate classes of marriage because some states allow gay marriage, leading to unfair treatment from one state to the next.

"If you have legal marriages, then you can't treat them unequally without adequate justification," Russell said, "and there isn't adequate justification."

"I would not be surprised to see DOMA struck down on rational basis alone," agreed Anthony Infanti, a constitutional law professor at the University of Pittsburgh School of Law. "There is as much anti-gay animus in the legislative history of DOMA as there was in the Roemer v. Evans case."

Roemer was the 1996 Supreme Court decision authored by Justice Anthony Kennedy, which struck down a Colorado ballot initiative that would have banned any antidiscrimination laws based on sexual orientation. The Colorado initiative, the court argued, singled out gays with "animus," without offering any minimally plausible rationale.

Liberty v. equality

At the end of this rainbow, alternately hoped for and feared, is a legal and political consensus that puts gender orientation on the same plane as race — forcing any from the public square who disagree.

This prospect has religious conservatives in a quandary. When the United Kingdom’s House of Lords approved legalization of gay marriage this week, the Catholic Church immediately announced that if the law is not amended, it will likely cease to perform civil marriages, in order to avoid inevitable lawsuits.

As the new British law stands, Catholic clergy performing marriages are deemed to be performing a state function, and it would be illegal for them to refuse to perform gay marriages. The Church has appealed for religious liberty exception, but thus far has been rebuffed.

This is the fear that haunts Princeton Prof. Robbie George, himself a Catholic. Speaking in April at Utah's Sutherland Institute, George passionately argued the implications for religious liberty.

“Some think we have lost," he said. "Some people think we should retreat from the fight for marriage and just fight for religious liberty. Folks, I’m here to tell you, if you lose the fight for marriage, there will be no protecting religious liberty.”

Speaking that same night at Utah Valley University, former Utah Gov. Mike Leavitt argued the compromise between the two values must be achieved.

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