There are passages in Chief Justice John Roberts’s opinion upholding the constitutionality of the Affordable Care Act that are beautiful in their view of the role of the Supreme Court. But they are also alarming in what they might mean for other acts of Congress that might face court scrutiny. I’m thinking about the so-called Defense of Marriage Act (DOMA). Two cases that could have an impact on the 1996 law passed by Congress and signed by President Clinton are headed to the nine justices. In Perry v. Schwarzenegger, California’s voter-approved constitutional ban of marriage for same-sex couples (Proposition 8) was declared unconstitutional by a panel of the Ninth Circuit Court of Appeals in February.The full court reaffirmed that ruling last month when it rejected a request to have the full Ninth Circuit review that decision. In Gill v. Office of Personnel Management and Massachusetts v. United States , the First Circuit Court of Appeals ruled in May that DOMA was unconstitutional because it denied same-sex married couples who were married in Massachusetts, where it is legal, the same federal benefits granted to heterosexual married couples. In both cases, there are questions of DOMA’s violation of the Constitution’s guarantee of equal protection under the law.
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