DOMA Likely to Fall

It appears that the arguments and questioning on DOMA during the SCOTUS hearing today have put the 17 year old law into question.  As usual, SCOTUSBLOG has some great analysis of the arguments.

That was the overriding impression after just under two hours of argument Wednesday on the fate of the Defense of Marriage Act.

That would happen, it appeared, primarily because Justice Anthony M. Kennedy seemed persuaded that the federal law intruded too deeply into the power of the states to regulate marriage, and that the federal definition cannot prevail.   The only barrier to such a ruling, it appeared, was the chance – an outside one, though — that the Court majority might conclude that there is no live case before it at this point.

After a sometimes bewilderingly complex first hour, discussing the Court’s power to decide the case of United States v. Windsor (12-307), the Court moved on to explore DOMA’s constitutionality.  And one of the most talented lawyers appearing these days before the Court — Washington attorney Paul D. Clement — faced fervent opposition to his defense of DOMA from enough members of the Court to make the difference.  He was there on behalf of the Republican leaders of the House (as majority members of the House’s Bipartisan Legal Advisory Group), defending the law because the Obama administration has stopped doing so.

Justice Kennedy told Clement that there was “a real risk” that DOMA would interfere with the traditional authority of states to regulate marriage.   Kennedy also seemed troubled about the sweeping breadth of DOMA’s Section 3, noting that its ban on benefits to already married same-sex couples under 1,100 laws and programs would mean that the federal government was “intertwined with citizens’ daily lives.”   He questioned Congress’s very authority to pass such a broad law.

Moreover, Kennedy questioned Clement’s most basic argument — that Congress was only reaching for uniformity, so that federal agencies would not have to sort out who was or was not married legally in deciding who could qualify for federal marital benefits, because some states were on the verge of recognizing same-sex marriage.

Along with sharply negative comments about DOMA by the Court’s four more liberal members, Kennedy’s stance could put the law on the edge of constitutional extinction.  But, if the Court were to do that based on states’ rights premises, the final ruling might not say much at all about whether same-sex couples were any closer to gaining an equal right to marry under the Constitution.

There did not appear to be a majority of Justices willing to strike down the 1996 law based on the argument that the Obama administration and gay rights advocates have been pressing: that is, the law violates the Fifth Amendment guarantee of legal equality in general.

Elena Kagan had some interesting moments today.

In discussing the origins of the law, Paul Clement, who represents the Bipartisan Legal Advisory Group, said that Congress’s key interest in passing DOMA was preserving the uniform treatment of couples in various states at a time when there where indications that some states might allow same-sex marriages.
“All these federal statutes were passed with the traditional definition of marriage in mind,” Clement said. “What Congress says is, ‘Let’s take a time out. This is a redefinition of an age-old tradition.’”

But Kagan fired back in her questioning, telling Clement that Congress wasn’t preserving tradition, but departing from it when it jumped into the marriage issue. “The only uniformity that the federal government has pursued is that it’s uniformly recognized the marriages that are recognized by the state,” she said. Congress’ foray into the issue in 1996 was so unusual that it “sen[t] up a pretty good red flag,” she said.

A short time later, Kagan read aloud from the House Judiciary Committee report on DOMA. “Congress decided to reflect and honor of collective moral judgment and to express moral disapproval of homosexuality,” she said, quoting the report.

“Is that what happened in 1996?” she asked to gasps, “oohs” and some laughter from many in the gallery who seemed to think she’d managed a rare Supreme Court “gotcha” moment.

Clement said he was not claiming moral disapproval constituted a sufficient basis for the law. “The House report says those things,” he said. But, he added, “we’ve never invoked [the report] in trying to defend the statute.”

The crowd outside the SCOTUS building got rowdy and into some fights.  Other interesting analysis can be found on Slate. I loved this line by Ginsberg.

Justice Ruth Bader Ginsburg had the laugh line of the day when she scolded DOMA for creating “two kinds of marriage, full marriage and the skim-milk marriage.” It was easy to see which one you’d want in your coffee.

Please post more things you’ve found on the arguments today!