Analysts assessing today's oral arguments at the US Supreme Court tend to agree that the seventeen-year-old law barring recognition of legally married same-sex couples, called the Defense of Marriage Act (DOMA), is in deep trouble.
If proved true when the court justice announces their decision later this year, it could be perhaps the largest and most far-reaching victory in the march for marriage equality yet. The case—United States v. Windsor—is a direct challenge to the law passed by Congress in 1996 and signed by President Bill Clinton.
From the Huffington Post:
A majority of Supreme Court justices on Wednesday morning appeared skeptical of the constitutionality of the Defense of Marriage Act (DOMA), which defines marriage for federal purposes as between a man and a woman. Whether the justices believe they have the power to make any decision in this case, however, remained murky.
It was the second day in a row that the high court heard arguments dealing with same-sex marriage. At issue Wednesday in United States v. Windsor was whether it was constitutional for the U.S. government to refuse to recognize same-sex marriages that had been recognized by the states.
And Lyle Denniston, a reporter for the well-regarded SCOTUS-Blog, recapped the day's events by declaring that "DOMA is in trouble":
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.
And The Guardian's Chris McGreal added:
The liberal justices, during the second day of historic hearings about gay unions, at times found themselves in the unusual position of emphasising states' rights – a position usually defended by the court's conservatives – as they painted Doma as unreasonably discriminating against same-sex couples legally married under the laws of nine states and Washington DC.
"It really diminishes what states have said about marriage," said Justice Ruth Bader Ginsburg.
Ginsburg dismissed descriptions of Doma as merely having an administrative impact, saying it "effects every area of life" for gay couples.
"There are two kinds of marriage. Full marriage and the skimmed-milk
marriage," she said.
Justice Elena Kagan questioned the motivation for the law, saying Congress passed it in a climate of "animus" and "dislike" of homosexuals, and of "moral judgment".
Stephen Breyer questioned why it was necessary to single out gay people as subject to a law barring them from equal treatment. He called the discrimination "irrational" in law.
But while opponents of Doma were predicting its imminent demise, even if the justices strike the law down it will not establish a right to gay marriage – merely an obligation on the federal government to recognise it on those states where it is legal.