But the court could surprise everybody by not ruling on the controversial case at all.
While it seems bizarre the Supreme Court would take on DOMA and then not rule on it, that’s a real possibility because Obama’s Justice Department refused to defend DOMA in court.
It’s usually up to the Justice Department to defend federal laws. In this case, since the gay-friendly Obama administration wouldn’t defend DOMA, a majority-Republican House committee called the Bipartisan Legal Advisory Group (BLAG) stepped up.
In order to defend a law, a legal party must have “standing,” or a sufficient connection to a case, to get involved. It’s unusual for a group like BLAG to defend a federal law, and several justices (including key swing voter Anthony Kennedy) questioned whether it had standing to fight the Clinton-era law.
Another complication is the Obama administration asked the Supreme Court to hear the case after an appeals court found DOMA unconstitutional (presumably because Obama wanted the high court to affirm that ruling). Obama might not have had standing to petition the Supreme Court since it wasn’t the losing party.
So what happens if the Supreme Court just dismisses the case because of standing issues?
“It would be a really chaotic situation. It would be terrible,” UCLA Law professor Adam Winkler told Business Insider in an interview.
Even though several judges have found DOMA unconstitutional, Obama would have to keep enforcing it.
Married gay couples could keep fighting DOMA in federal courts, and judges could keep finding it unconstitutional. That means married gay couples in those judges’ individual jurisdictions could get federal benefits. There could ultimately be a crazy patchwork where some jurisdictions say DOMA is legal and others say it isn’t.
The only ways DOMA could be overturned would be if Congress decided to act, or if a gay couple lost a district court case and then filed an appeal. As the losing couple, the couple could potentially have standing to bring the case back up to the Supreme Court.
Despite this potential chaos, it could be tempting for the justices to say BLAG doesn’t have standing and simply punt on DOMA, Winkler has written in The New Republic.
Kennedy, for one, doesn’t like DOMA mostly because he thinks it violates states’ rights to define marriage. The four liberal justices, on the other hand, seem to think DOMA violates the Constitution’s guarantees of equal protection. Kennedy and the liberals might not agree on the reasoning for upholding DOMA, so dismissing the case for lack of standing could be an easy out for Kennedy.