For the second day in a row, the Supreme Court addressed gay marriage. Yesterday the Supreme Court heard oral arguments on the constitutionality of California’s Proposition 8 ballot initiative that prohibited same-sex marriage in the state. Prop 8, which was passed by California voters in November 2008, reversed an earlier California Supreme Court ruling that had recognized gay marriage. The justices are being asked to determine the limits (if there are any) that the Constitution imposes on the government power to restrict who can and who cannot marry.
Today’s hearing on the Defense of Marriage Act (DOMA), which was passed by Congress in 1996 and signed by then President Clinton, is about whether this legislation is constitutional. DOMA defined marriage as between a man and woman regardless of state laws that may have permitted same-sex marriage. Lower courts have struck down DOMA.
According to the constitutional law experts at SCOTUSblog, DOMA is in danger of being struck down:
“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.
Along with sharply negative comments about DOMA by the Court’s four more liberal members, Kennedy’s stance could put the law on the edge of constitutional extinction. But, if the Court were to do that based on states’ rights premises, the final ruling might not say much at all about whether same-sex couples were any closer to gaining an equal right to marry under the Constitution.”
This is another case where the outcome seems to hinge on Justice Kennedy, who is considered the swing vote on the Supreme Court.
It was also reported that the liberal justices on the Court questioned DOMA and how its existence “diminished marriages” of same-sex couples in the nine states that have legalized those marriages.
Should the justices strike down DOMA, it may not have an effect on the states that do not recognize same-sex marriages.