DOMA at the Supreme Court: Why the Conservative Court May Punt on this Huge Issue


After a necessary summer vacation following a raucous closing to the spring term, the Supreme Court will be formally kicking off its fall session today as the Justices gather to determine which cases from the summer months they will hear later this year.

While the Court’s last term may be a tough act to follow after delivering decisions on such high profile issues as Arizona’s immigration law and President Obama’s health care reform, this term is shaping up to be important in its own right. Let’s take a preview look at several big issues to keep your eyes on as the term gets underway.

1. Affirmative Action: One of the few big-ticket cases already scheduled for argument kicks off the session by revisiting the controversial issue of affirmative action in college admissions. Fisher v. University of Texas at Austin challenges the constitutionality of a Texas program that takes race into consideration when making undergraduate admissions decisions.

The state of Texas has a “top 10%” program which automatically grants admission to the University of Texas system for any student finishing in the top 10% of their high school class. All remaining spots go to applicants that have to apply through an application process that factors the race of the applicant into the admissions decision.

Abigail Fisher, a white female from Sugar Land, Texas, was denied admission to the University of Texas at Austin and subsequently filed a lawsuit challenging the constitutionality of the program, alleging that she was admission denied on the basis of her race.

While the Court has upheld the constitutionality of using race as a factor for consideration in admissions decisions as recently as 2003Fisher marks an opportunity for the more conservative bench to reverse course. The five conservatives could declare that, while affirmative action may have served a purpose in the past, factoring race into admissions decisions is no longer relevant where systems like Texas’ “top 10%” program effectively provide diversity among admitted student bodies.

The case is scheduled for argument next week on October 10. Justice Elena Kagan is recused.

2. Gay Marriage: The fight over marriage equality has consistently been in the headlines ever since Massachusetts became the first state to legalize it in 2004. The battle over gay marriage has taken many twists and turns since then but the issue is poised to finally hit the Supreme Court during this term, although what form it takes remains to be seen. Two major cases addressing marriage equality are waiting for the Court to decide if, when, and how they will review lower court’s judgments.

The first, Massachusetts v. Department of Health and Human Services, is the much talked about case that challenges the constitutionality of the 1996 Defense of Marriage Act (DOMA), a law signed by Bill Clinton that defines marriage as exclusively between a man and a woman. The case made headlines when President Obama ordered the Justice Department to stop defending it in February of last year, reasoning that the law was constitutionally indefensible.

Earlier this year, the First Circuit agreed with President Obama’s decision, declaring DOMA unconstitutional and concluding that “moral disapproval alone cannot justify legislation discriminating” on the basis of homosexuality. The case is almost certain to make an appearance later this term, but much about what part of the law the Supreme Court will take a closer look is yet to be determined.

The second case, Perry v. Brown, has come knocking on the Supreme Court’s door by way of the Proposition 8 fight out of California. Prop 8, a 2008 ballot initiative that amended the state constitution to restrict marriage to opposite sex-couples only, was challenged as unconstitutionally discriminatory in 2009.

Both the federal district court and the Ninth Circuit Court of Appeals declared the law unconstitutional, finding that the law served no other purpose than to “lessen the status and human dignity of gays and lesbians.”

Whether the Supreme Court decides to hear the Prop 8 case remains an open question, as some scholars think that the Court is unlikely to address the same issue (gay marriage) twice in one term. Moreover, the Court’s internal politics will undoubtedly be important as both conservative and liberal justices try to grant review to the case they see as better positioned for a particular outcome.

It is also possible that the Supreme Court punts on the issue of addressing gay marriage entirely, which would leave both DOMA and Prop 8 struck down, but fails to give any clear guidance about the legal status of marriage equality moving forward.

3. Voting Rights: There are several cases concerning the Voting Rights Act waiting to find out whether they will get their day before the Supreme Court. The cases arise out of one of the more controversial sections of the Voting Rights Act, Section 5, which requires that certain states with a history of racial discrimination receive federal permission before enacting changes to their voting or election laws.

The cases are the result of Republican attorneys general and some conservative activists pushing back against the requirement that the predominantly Republican states pre-screen changes such as the implementation of voter ID laws and new redistricting maps with the federal government before enactment. Conservatives contend that the requirement is an unconstitutional intrusion on state sovereignty while liberals argue that the restrictions are there for a reason and are just as relevant today as they were when the law was passed in 1965.

With allegations of voter suppression flying from both parties and the vital role that voter turnout plays in elections for both parties, the questions addressed by the Court in these cases will result in decisions likely to have the largest impact and long-term implications for America democracy.

Many legal scholars see potential for Section 5 to be struck down by the right-leaning court, a result applauded by those on the right and abhorred by those on the left. Those on the right argue that the racism of the past is no longer relevant enough to justify federal government intrusion into state election laws while those on the left contend that the only reason that Republicans want to remove the restriction is to carry out voter suppression against minorities with a free hand.

Looking Ahead

The opening weeks of the term will also have legal reporters craning in their seats to look for physical clues as to the relationship among the Justices after the contentious Obamacare decision.

Many will be looking to see how the once strongly bonded conservative coalition of Chief Justice Roberts, Justice Scalia, Justice Thomas, and Justice Alito acts to after Chief Justice Roberts changed his mind and delivered the vote that upheld the constitutionality of President Obama’s healthcare law.

While the smallest of social cues will surely get eaten up by the media, most of it will soon become simple fodder for the legal gossip blogs as Roberts will likely rejoin his conservative brethren this term, leaving the swing vote back in hands of perennial king-maker, Justice Anthony Kennedy.