OF the many momentous issues the Supreme Court will take up this term, few are as volatile as same-sex marriage. In the term that began last week, the justices are expected to consider the constitutionality of the federal Defense of Marriage Act, and possibly state bans on gay marriage as well. The question looms: how might they rule?
The Defense of Marriage Act, or DOMA, the 1996 law denying federal recognition to same-sex marriages lawfully performed by states, is probably the easier case for the justices. Historically, Congress has deferred to state definitions of marriage, and several federal courts have invalidated the law on these grounds of federalism. DOMA is also vulnerable because some of its legislative sponsors defended it in blatantly homophobic terms. Polls show that a substantial majority of Americans are opposed to it. Conservative justices who value federalism and liberal justices who sympathize with gay marriage will probably combine to invalidate the act.