The Dangers of Overturning DOMA In the Supreme Court

STORY BY Grace Jung

Published: May 17, 2013

I've been thinking a great deal about DOMA again, especially with all the recent victories for marriage equality. The Supreme Court’s decision on the federal law isn’t set to come out until June or later, but the topic was brought up once again following Tuesday’s marriage equality victory in Delaware. DOMA is, without a doubt, an unconstitutional law that should have never passed to begin with, with several states repealing or working to repeal specific provisions in the past few years alone.

But if there’s anything I learned in my Criminal Due Process class, it’s that the Supreme Court has a unique power: setting precedents that have large-scale effects.

I have my reservations about the Supreme Court overturning it, simply because it sets a dangerous precedent. A libertarian friend of mine explained it this way: If the Court can overturn a single federal law to affect the entire nation, it gives the Supreme Court an incredible amount of power. And while I'm not suggesting that they'll abuse it in any way, if there ever comes a time where the majority of the justices are from the opposition, the overturning of DOMA could come back to haunt those who advocated for it. The opposition, for example, can propose a bill to overturn all marriage equality victories in the States, and theoretically, it's very possible that if it reaches an opposition dominated Supreme Court, said Court can enforce that bill to overrule State power.

The act of overturning DOMA on such a national level is dangerous, and advocates for same-sex marriage often overlook that. Picking up victories state by state may be a slower battle, but perhaps it’s the best way to win the war. 

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