The Defense of Marriage Act — the federal law that defines marriage as the legal union of one man and one woman for federal and inter-state recognition purposes — has been struck down by a Federal Appeals Court in New York.
The decision — the second of its kind — likely paves the way for a critical confrontation over gay marriage in the Supreme Court, likely in 2013 (wow).
More so, the decision could push more gay marriage issues to the forefront of American debate, especially during the peak of the 2012 campaign session. If such a policy discussion erupts in election 2012, the results could be mixed, with some data pointing to incumbent President Barack Obama losing key voters over the issue, while other trends showing the president could marshal broad public sentiment if he stood behind same sex marriage.
So what exactly happened with DOMA? A second federal circuit court struck down the controversial DOMA policy. Chief Judge Dennis Jacobs, (a severely conservative judge, for the record), outlined in his opinion that any law which discriminates against gay men and lesbians should be treated very skeptically under our Constitution:
[W]e conclude that review of Section 3 of DOMA requires heightened scrutiny. The Supreme Court uses certain factors to decide whether a new classification qualifies as a quasi-suspect class. They include: A) whether the class has been historically “subjected to discrimination,”; B) whether the class has a defining characteristic that “frequently bears [a] relation to ability to perform or contribute to society,” C) whether the class exhibits “obvious, immutable, or distinguishing characteristics that define them as a discrete group;” and D) whether the class is “a minority or politically powerless.” Immutability and lack of political power are not strictly necessary factors to identify a suspect class. Nevertheless, immutability and political power are indicative, and we consider them here. In this case, all four factors justify heightened scrutiny: A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority.
The federal court in Manhattan used the same reasoning as the other circuit court, the 1st circuit in Boston.
The 2nd circuit court of appeals issued its 2-to-1 ruling only weeks after hearing arguments on a lower court judge's findings that the 1996 law was unconstitutional. There are 13 total circuits, but only two have ruled on DOMA at the appellate level.
How could this decision influence the 2012 election? If Obama pushes a hard pro-gay marriage stance through the remaining three weeks of the election, it could actually hurt him. In May when the president publicly endorsed gay marriage, he promptly fell behind then-presumptive GOP presidential nominee Mitt Romney in national polling (it was the first time in the campaign that Romney took a lead ahead of the president in the polls).
Still, that case study doesn’t tell the whole story. A new Pew Hispanic Center study released Thursday showed that more than half of Latinos now support gay marriage than oppose it (52% to 34%). The Latino vote is a vital demographic for both candidates in election 2012. The Pew study here is important: to underscore how dramatic the favorability of gay marriage is among this voting bloc, consider that in 2006 — just six years ago — the number was essentially reversed, with 56% opposing same-sex marriage and 31% supporting it.
The shifting attitudes on same-sex marriage in the Latino community mirror those of the nation as a whole. A May Gallup poll showed that half of Americans support same-sex marriage when just six years ago, almost six in ten opposed it.
That considered, if Obama were to gamble and begin taking a stand for gay marriage in election 2012, he could see wide support from voters. Still, this second hypothetical is more uncertain.
LGBT rights remain a contentious, intricate topic in 31 states through nine ballot measures, 19 federal laws, 30 state laws, and 40 lawsuits.
Maryland will be the next gay marriage battleground, with an election day ballot question in that state on whether to uphold a state law allowing gay marriage. And with just under three weeks to go until election day, same-sex marriage has taken a substantial lead in the state, according to a Washington Post poll: the gay marriage initiative is favored 52% to 43% among likely voters, according to the poll, reflecting a long-term trend toward greater acceptance of gay unions.
The poll is consistent with past polls that have found marriage equality in the lead. In May, a poll found support at 57%, while an August poll put it at 54%. Should marriage equality win on November 6, Maryland will become the first state in the country to legalize it at the ballot box.
Gallup reported on Thursday that 3.4% of U.S. adults identify as LGBT.
What chances would DOMA have at the Supreme Court? PolicyMic Pundit Ned Flaherty compares the Court’s views on the issues today in the same scope as the Court viewed the civil rights issue in the 1950s and 60s. In 1958, 63% of the states outlawed interracial marriage, and 98% of the population opposed it. But many more Americans favor equality in 2012 than did so in 1967: 54% support same-gender marriage today, whereas only 2% supported interracial marriage four decades ago. Since the Supreme Court overturned laws prohibiting interracial marriage in 1967, it certainly should be able to overturn laws prohibiting same-gender marriage today. Likewise, the Court struck down separate-but-equal public schools in 1954, so it should have no difficulty striking down separate-but-equal marriage laws like civil unions and domestic partnerships today.
DOMA could be the “October Surprise” of election 2012, and if it is, DOMA’s influence on election 2012 would be unpredictable.