by Max Brantley
* THE FEDERAL DEFENSE OF MARRIAGE ACT. This act denies benefits to same sex couples legally married in the 12 states that now approve same-sex union. It is hard to see how this direct affront to equal protection can survive. Striking down the law wouldn't require any state to approve same-sex marriage. It would, though, open the huge range of federal benefits to some — but not all — same-sex couples. That would seemingly create a ripe target for a new equal protection argument of its own.
* PROPOSITION 8: The voter initiative banned gay marriage in California and was struck down by a lower court. It is hard to believe this Republican-loaded court is ready to make the proper and sweeping conclusion — ahead of the wishes of a majority of the states — that equality means equality. It is equally hard to believe the court won't find a way to avoid reinstating Prop. 8 in California, even if it uses only a procedural escape.
But, obviously, I haven't a clue. The Human Rights Campaign outlines possible scenarios. UPDATE: The winner is door No. 2. See subsequent posts.