DOMA faces skeptical Kennedy

The audio of the DOMA Oral Arguments is now available online, and all signs are positive for the LGBT community. I’ll post some snips to this post shortly. At any rate, Justice Kennedy seemed very skeptical of the federal government’s right to ignore state definition of marriages. (Here is the Transcript of the Oral Arguments.)

If the Supreme Court can find its way through a dense procedural thicket, and confront the constitutionality of the federal law that defined marriage as limited to a man and a woman, that law may be gone, after a seventeen-year existence.  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. (Lyle Denniston/SCOTUSBlog)

Now, a ruling based on federalism (aka states rights) would be a much more narrow decision than something based on the equal protection clause of the 5th Amendment. In other words, the federalism argument says nothing about the inherent right to marriage equality, it would simply say that the federal government cannot ignore the duly granted marriages of each state.

The first hour of the argument dealt with the question of whether the House Republicans (through the Bipartisan Legal Advisory Group) are an appropriate party for the case, and whether this is a case that the Supreme Court can now hear. The Court seemed generally comfortable with exercising jurisdiction on the case, but it is a highly technical question of law.

After a break, the argument moved on to the merits of the case, and Paul Clement, the House’s attorney, got beat up for a while by Justices Sotomayor and Kagan. (Check out the “skim milk” audio clip.) Furthermore, Justice Kagan quoted from the findings in the legislative history (see the 74minute mark of the main clip):

I’m going to quote from the House Report  here — is that “Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.”

That quote resulted an audible mumble from the gallery. Clement argued that the House report had other rational basis points to support the statute. He didn’t argue that there was animus against the LGBT community, just that the animus wasn’t enough to strike down the law.

On the flip side, the government, and Ms. Windsor’s attorney, got some grilling on their position that DOMA violated equal protection. The question of what the standard should be, (strict, intermediate, or rational basis), didn’t seem to be going the government’s way either. In fact, if Justice Kennedy gets his way, and decides the case on federalism, we may not get to that question at all in this case.

In the end, if Kennedy is leaning the way he seemed to be in the oral argument, DOMA seems unlikely to survive. However, a broad decision in either this case or the Prop 8 case seems increasingly unlikely.

Also, check out AfJ’s audio analysis of the case.