Oral Argument: DOMA in Trouble

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.


  1. baal says

    In a rational world, this case would have been a 9-0 no brainer under equal protection. Gay couples and straight couples get equal rights under the laws of the United States. The only evidence that the 2 sets of couples are different come from scientifically ridiculous papers or from bigotry buttressed with religion.

    Early comments suggest Kennedy will focus on States rights. i.e. if a State decides to implement gay marriage, the FEDGOV should respect that decision and grant the relevant federal benefits to those couples. This solution is a bit weird since it incentives gay couples to change their legal residences in order to get Social Security death benefits (for example).

    I’ll also note that the early comment focus on the ‘liberal’ justices being concerned about ‘too far, too fast’. Roe is held out as the primary example of a case where the SCOTUS moved the par marker and there was a backlash. Oddly, we saw no such concern over Citizens United or other right wing activist cases from recent years.

  2. John Hinkle says

    He wondered why Congress could deny marriage benefits in states “where the voters have decided” that same sex marriage ought to be legal.

    I thought wingnuts were all “states’ rights.” Guess it’s just a matter of convenience.

  3. abb3w says

    Harlan Institute’s “Fantasy SCOTUS” is currently predicting… incoherently on the Windsor case. Or at least, I don’t see how you can get an 80% affirming that the SCOTUS is deprived of jurisdiction because the SolicitorG agrees with the 2nd, and also get an 80% affirming that the BLAG has standing.

    Contrariwise, if it gets to the merits, it calls an 80% affirm DOMA is a 5th Amendment violation.

    Nohow, none of their half-dozen top-rated predictors have made a call yet, and even then it’s all just skilled guesswork.

  4. jamessweet says

    Yeah, the smart money going in was one “DOMA struck 5-4″ and “Prop 8 never really gets to the real merits, either rejected on standing or else upholding the 9th’s very narrow ruling” — and the oral arguments have only seemed to bolster confidence in that prediction.

  5. lanetaylor says

    I hope they can remember these state’s rights arguments when marijuana laws are eventually argued.

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