DOMA DOA

This week a three-judge panel of the 1st circuit of the US Court of Appeals struck down as unconstitutional the Defense of Marriage Act (DOMA) of 1996. This was the infamous Republican election-year attack on the human rights of gay people cowardly signed into law by that treacherous sack of shit Bill Clinton. The act was authored principally by then-Congressman Bob Barr of Georgia, a man with so much respect for traditional marriage that he's had three of them himself, the first two of which ended in divorce. Barr later repudiated DOMA while he ran a frivolous campaign for the presidency as the nominee of the Libertarian party, a party affiliation he repudiated in 2012 in favor of renewing his previously repudiated Republican party affiliation in a failed attempt to regain a seat in Congress. That's the kind of unscrupulous, unprincipled man the right-wing champions as a defender of traditional morality.

So heading to the Supreme Court are two critical gay-rights cases: Proposition 8 in California and DOMA. They'll arrive sometime after the November election. Their disposition will in large part depend on what happens in Washington state, Maine, Maryland, and Minnesota. The former three have gay marriage on the ballot; the latter has a state constitutional amendment prohibiting gay marriage up for a vote. If we win all four--and that seems probable now that opinion is rapidly turning our way after Mr. Obama's announcement supporting gay marriage--then there are good reasons to anticipate victory in the Supreme Court mostly, I think, because nobody on the Court (except Scalia) wants to be this generation's Roger Tawney.

You'll remember from your US history that in 1857 Chief Justice Roger Tawney wrote the majority opinion in the Dred Scott case and won for himself undying infamy. By all accounts Tawney was a decent man, a Maryland Catholic who had freed his own slaves and personally opposed slavery. But as a judge he believed himself bound to uphold the letter of the Constitution, which of course permitted slavery and defined black people as three-fifths of a citizen (for that read "white people"). Tawney's legalism overrode his morality and his memory has been reviled ever since.

The Court can plainly see that the tide of history is flowing in the direction of full, equal civil rights for gay people. No justice wants to be a member of Tawney's gallery of rogues. So I'm guessing that after the election the Court will use the victories in these four elections as the foundation for a leap forward in gay rights: it will uphold the unconstitutionality of DOMA, thus requiring the federal government to recognize gay marriages; and it will uphold equal marriage for gay people as a basic civil right.

And when the Court so rules, the game's over--we'll have won!