Feinstein cites pending Supreme Court decision that may strike down DOMA to explain voting against Immigration Amendment to Benefit Gay Couples

May 21st, 2013

Today, Senator Leahy withdrew an amendment from the proposed immigration bill that would have recognized same-se marriages for immigration purposes. Leahy lost support from most Democrats, who, though conflicted, argued that adding this amendment would kill the entire bill. One comment from Senator Feinstein in particular was timely for us SCOTUS wonks:

Sen. Dianne Feinstein cited Graham’s comments, then, saying, “I think this sounds like the fairest approach, but here’s the problem … we know this is going to blow the agreement apart. I don’t want to blow this bill apart.”

She cited the fact that the Supreme Court could strike down the Defense of Marriage Act provision that prevents same-sex couples from having equal immigration rights. She also noted the a bill to repeal DOMA is holding in the Senate, concluding, “I would just implore to hold up on this amendment at this time.”

Alas I don’t have a transcript, but assuming these remarks are accurate, what exactly would the Supreme Court’s decision have to do with this case? Well, I gather that the Congress really, really hopes the Court strikes down DOMA so they don’t have to. And if the Court strikes down DOMA, would it be unconstitutional for an immigration statue to provide certain rights for opposite-sex couples, but not same-sex couples? Would such a law have a rational basis?

This seems to be an interesting spot where Congress is willing to pass the buck to the Court to make the tough decision–the very decision that the Court would almost certainly have the Congress do.

I’m sure this will find its way into Justice Scalia’s DOMA dissent somewhere. Or something like that.