The oral arguments in the DOMA case are over and the early reports are that it looks like Section 3 of the Defense of Marriage Act is likely to be struck down. SCOTUSblog even tweeted that the court is “80% likely to strike down DOMA,” noting that Kennedy has federalist concerns and the four liberals are in favor of overturning on equal rights basis.
A majority of the Supreme Court justices delivered a beating to the Defense of Marriage Act during oral arguments Wednesday, signaling a positive outcome for marriage equality.
The four liberal-leaning justices and Justice Anthony Kennedy appeared deeply skeptical that the federal government has legal justification for treating gay and straight couples unequally. They seemed inclined to overturn Section 3 of the 1996 law, which prohibits federal recognition of same-sex marriage and thereby denies benefits to gay and lesbian couples even if they are legally wed in their states.
In his line of questioning, Kennedy, who has a track record in favor of gay rights, repeatedly contended that the federal government had exceeded its constitutional authority.
“You are at real risk of going in conflict … with federal police powers,” he told Paul Clement, the lawyer arguing in favor of upholding DOMA. When Clement tried to argue that it was a valid exercise of federal power and does not infringe on states’ rights, Kennedy responded, “I see illogic in your argument.” He wondered why Congress could deny marriage benefits in states “where the voters have decided” that same sex marriage ought to be legal.
This should come with the usual caveat that oral argument does not necessarily indicate the way the judges will vote, but it does typically show the way the judges are leaning. And this is not at all surprising. I figured from the start that there was a good chance of the right ruling on the DOMA case. I haven’t read nor heard the oral argument yet, so I’m sure I’ll have more to say on this over the next few days as I dig in to those transcripts.