Lyle Denniston’s recap of the oral argument in Windsor v United States reaches much the same conclusion that most other observers have reached, that there appears to be five votes for overturning Section 3 of the Defense of Marriage Act, but likely not on broad equal protection grounds. Justice Kennedy, again the key swing vote, was very skeptical of the law on federalism grounds:
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.
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.
But there almost certainly aren’t the votes there for a broad ruling based on basic equality questions:
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.
If the House GOP leaders’ lawyer had trouble on Wednesday, so did the federal government’s lawyer, Solicitor General Donald B. Verrilli, Jr., who was pushing for a wide-ranging ruling that might have the potential to outlaw any ban on same-sex marriage. It was not apparent that Verrilli was making much headway with his argument that any law that treats gays and lesbians less favorably, because of their sexual identity, should have to satisfy a stricter constitutional test.
It appears likely after oral argument in both marriage equality cases that the pro-equality side will get very narrow victories. In the Prop 8 case, the victory is almost by accident because the court is likely to dismiss the case based on standing that would apparently leave the district court ruling in place (for reasons I don’t quite understand) that overturned Prop 8.
And in the DOMA case, I think we’ll see a plurality opinion. Kennedy will write the majority opinion striking down Section 3 on federalism grounds, joined by the four liberals on the court who will sign on to a concurring opinion arguing for a much broader ruling on 5th and 14th Amendment grounds. What will be very interesting to watch is whether those four justices also argue for heightened scrutiny. I doubt Kennedy will, but if those four justices do, that will help establish a precedent for lower court judges to grab onto in future cases.
But in general, I do not expect the Supreme Court to issue a broad ruling that marriage equality is required by the Equal Protection Clause for several more years, at minimum. I think once the states begin to repeal their bans on same-sex marriage and institute legal marriage for gay couples in 15 or 20 states, then we’ll see the Supreme Court come in and finish the job. Minnesota was the first to do so and I expect several more states to do so, including California, in 2014 and 2016.