Looks like DOMA will be stricken … if the Court decides the issue at all in this case. [Expanded.and updated.]

Final update: #scotus 80% likely to strike down #doma. J Kennedy suggests it violates states’ rights; 4 other Justices see as gay rights.

–Tom Goldstein of SCOTUSblog, on Twitter


“The question is whether or not the federal government under a federalism system has the authority to regulate marriage,” Justice Kennedy said during oral arguments. At another point, he disagreed with the lawyer’s contention that the law simply creates a single definition for federal purposes. “It’s not really uniformity,” the justice said, because same-sex couples would not have access to federal benefits that traditional couples have.

Justice Kennedy’s point echoed one made by his more liberal colleagues.

Justice Ruth Bader Ginsburg said the federal law effectively created a two-tiered system of marriage. “There are two kinds of marriage,” she said. “Full marriage and the skim-milk marriage.”

5 Justices Seem Skeptical of Ban on Benefits to Gay Spouses, Adam Liptak and Peter Baker, New York Times

From what Liptak and Baker write, it sounds like Kennedy may vote to strike down DOMA as unconstitutional on equal protection grounds as well as on states-rights grounds, not just on the latter ground.  So it would be a 5-4 decision on that issue, not a 4-4-1 decision in which Kennedy takes no position on the equal protection issue.

That will be important down the road, once the Court does decide to decide the issue of marriage as a constitutional right for same-sex couples, which it looks like they won’t do in the California Prop. 8 case argued yesterday.  

But, for “jurisdictional” reasons, the Court might decide not to decide the constitutional issue in this case.  The Washington Post’s report on today’s argument discusses the procedural issue and what transpired on it during the argument this morning.  A majority could vote to dismiss the case and leave the lower appellate opinion, holding DOMA unconstitutional, intact, if the Obama administration did defend the law in that court; I don’t know whether it did or not.*  I doubt that that is what will happen, though.  I think a majority will say that there is a sufficient “case or controversy” between the plaintiff and the federal government, which enforced DOMA against her even though the administration is not defending the law in court, to permit the federal courts to decide this case. So, despite the House group’s lack of “standing” to be a party in the case, the Court would have jurisdiction to decide the case, as did the lower appellate court.

I explained the “standing” thing here yesterday, in the context the Prop. 8 case.


UPDATE: Here’s SCOTUSblog’s Lyle Denniston really thorough article reporting on and explaining it all.  Most interesting to me is this:

Justice Kennedy told [attorney Paul] 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.
Wow.  This is not just an equal-protection statement.  This is even more basic.  It is a substantive-due-process-rights statement.  As in: There are constitutional limits to which the government–state or federal–is permitted to interfere in personal and private decisions. That was the ground on which Kennedy and the justices who joined his opinion a decade or so ago held Texas’s criminal anti-sodomy law unconstitutional. 


*The Obama administration never defended DOMA in the Windsor case, the case argued today. The plaintiff, Edie Windsor, won in the trial-level court, and then in the Second Circuit Court of Appeals.  So if the Supreme Court dismisses the appeal, which was filed by a group of House Republicans, on the ground that that group lacks standing to be a party to the case at any level, that would reinstate the trial-court ruling in Windsor’s favor, but that ruling would have no precedential effect in other cases even within the Second Circuit. But, as I said above, and as Lyle Denniston says, it’s likely that the Court will say that there is an active case and controversy between Windsor and the federal government because the government did enforce DOMA against her until she filed the lawsuit and won in the lower courts.