Michael Woeste, woestemf@muohio.edu

It is likely that the Supreme Court of the United States (SCOTUS) will take of the case of HHS v. Massachusetts in the current term in order to decide the fate of the Defense of Marriage Act (DOMA).

This issue may be the hallmark case of the term for the Court, and could bring a new wave of issues concerning federal powers and equal protection for a new class of people, that has not been touched by the Court.

What the Court needs to consider is not only the contemporary issues concerning what the definition of marriage is, or what powers may decide who may marry who, but take into consideration the larger federal question that is before the Court.

DOMA has been an issue long in contention within the country. Passed by Congress in 1996, the act allowed the federal government to decide what the federal definition of marriage is.

Additionally, DOMA allowed the states to decide what the definition of marriage to be on a state-by-state basis.

From these measures, came suits on the state and federal level, that fast-tracked the case to the Supreme Court, and the Court will most likely take the case.

Justice Ginsburg recently held a lecture at the University of Colorado at Boulder, and was quoted saying, “I think it’s most likely that we will have that issue before the court toward the end of the current term.”

Opponents of DOMA assert the actions of Congress were unconstitutional and passed in such a way that is discriminatory to same sex couples.

Both cases cite the Fifth and Fourteenth Amendments as the primary constitutional argument in favor of their case.

The parties against DOMA assert that the actions taken by the federal government violate the equal protection rights of the Constitution.

What the opponents of DOMA do not look at is the nature of DOMA itself.

In the brief for the Petitioner, the government cites the legislative history of DOMA, and shows that DOMA was created to have a uniform definition within federal law.

It should be noted that Congress cited over one thousand federal programs and forms which request marital status, and programs in which marriage plays a factor in the allocation of federal benefits.

This legislative intent is done in order to guide the Court in a direction of showing a legitimate governmental interest in a concrete definition of marriage.

Much like the healthcare case in the Court’s last term, SCOTUS must tackle a very controversial issue within the country, and one that has been disagreed upon not only throughout the federal and state courts.

DOMA also mirrors healthcare in the sense that a major constitutional issue is in question, but the legislative framework of the law may be the saving grace for DOMA much like healthcare.

While the healthcare case was a win for the Obama administration, the law lost on the constitutional merits alone.

Chief Justice Roberts asserted in the opinion that the Affordable Healthcare Act could not sustain constitutional weight through the Commerce Clause or the Necessary and Proper Clause.

The taxation portion is what the Court sided with in upholding the law.

The same fate may be true for DOMA.

It is likely that the Court will look at the framework of the law that was passed in 1996 and used the strict scrutiny test in order to decide the level of governmental interest within the passage of DOMA, and the creation of a uniform definition of marriage.

Another weakness within the Petitioner’s side of the case is that DOMA does not invalidate same-sex marriage across the board. DOMA does not touch the states’ right to decide what they consider marriage to be, or refuse to recognize same-sex marriages granted in the states that allow it.

In fact, during the passage of DOMA, no state had allowed same-sex marriage yet.

Based on the legislative intentions of Congress, the act had no discriminatory nature that would give cause to a violation of the Fifth or Fourteenth Amendments.

The true intention of the law was to ensure that a standard definition of marriage was used throughout federal laws.

This would apply to issues arising from the Family Medical Leave Act to a filing of tax returns.

Congressional action was taken on the onset of gay marriage becoming a legal issue throughout the United States.

The intentions of Congress to assist the federal government in the changing tides of society was not malicious.

Instead it was benign and beneficial to a society ready to welcome same-sex marriage.

Last term set the stage as to how the Court could possibly rule on this action from a legislative standpoint, and the case of Fisher v. University of Texas at Austin (argued last week) will show how the Court is weighing issues of discrimination.

If the Court wishes to maintain a uniform manner of making their decisions, the outlook is bleak for proponents of same-sex marriage.