DOMA Looks to Be in Serious Trouble in Supreme Court's Second Day of Gay Marriage HearingsS

Just one day after hearing arguments regarding California's gay marriage ban, the Supreme Court is back in session to consider the constitutionality of the Defense of Marriage Act. DOMA, as it's commonly called, is the act, signed into law by President Clinton in 1996, that restricts the federal government from acknowledging same-sex marriages, even if those unions are recognized in the states of their origin.

Whereas yesterday's Prop. 8 hearing saw the needle move only slightly for gay rights, some experts estimated that today's arguments would bring about a more significant change. And if early signals are right, it looks like those experts were correct.

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Before today's DOMA arguments even began, Harvard law professor Vicki Jackson (appointed by the SCOTUS itself) took the floor to share arguments about whether the court could even reasonably hear the DOMA case considering that the Obama administration has called the act unconstitutional. Reuters reported:

In the challenge to the Defense of Marriage Act, the court said it would consider whether it could even decide the case, given that President Barack Obama's administration has said that the law is unconstitutional. ... Jackson, who joined Harvard Law School last year from Georgetown University Law Center, will argue that the Obama administration's position strips the Supreme Court of authority over the case.

In the wake of Jackson's statements, the conservative justices leapt on the Obama administration for seemingly passing the buck, according to the Wall Street Journal.

Conservative justices sharply questioned why the Justice Department is refusing to defend DOMA as unconstitutional but yet enforcing the law and placing the gay-marriage question before the Supreme Court. Justices also questioned whether the case belonged before the court at all.

Chief Justice John Roberts told attrorney Sri Srinivasan, the principal deputy solicitor general, that the government's actions were "unprecedented." To agree with a lower court ruling finding DOMA unconstitutional but yet seeking the Supreme Court to weigh in while it enforces the law is "has never been done before," he said.

At one point, Chief Justice Roberts even went so far as to say of Obama, "I don't see why he doesn't have the courage of his convictions."

The Wall Street Journal also reported that the justices seemed to disagree with Jackson in that they didn't have the authority to decide the DOMA case:

Justices asked skeptical questions of Ms. Jackson, suggesting that they didn't buy her arguments that neither the House members who defend DOMA nor the executive branch have an interest in the case.

Once they'd moved beyond their standing question, the justices heard Paul Clement, who is representing the House Republicans advocating for DOMA. Clement took tough questions immediately about the potential conflict between DOMA and states' rights, a famous GOP darling. This from Bloomberg:

During initial arguments today ... Justice Anthony Kennedy suggested that a federal law that doesn't recognize gay marriages that are legal in some states can create conflicts. "You are at real risk of running in conflict" with the "essence" of state powers, Kennedy said.

Justice Ginsburg, a liberal member of the court, likened gay marriages not recognized federally—and thus left out of certain benefits—as "skim-milk" marriages. "One might well ask, what kind of marriage is this?" she said.

Justice Sotomayor also joined in this line of inquiry.

One of the main cruxes of Clement's responses was that the federal government has very good reason to want uniform treatment of marriages, regardless of in which state those marriages take place:

Mr. Clement said the federal government has a particularly acute interest in couples being treated equally across state lines. That wouldn't happen if same-sex couples in states with gay marriage could receive federal benefits, while same-sex couples in other states could not. It was rational, he said, for Congress to treat all same-sex couples the same.

When it was Solicitor General Donald Verrilli's turn to speak, he attempted to steer the conversation away from the states' rights and tax benefits discussion and toward the discriminatory genesis of DOMA. The law isn't the "Federal Uniform Definition of Marriage Act," he told the court. "It's called the Defense of Marriage Act."

Justice Kagan took Verilli's suggestion of prejudice and ran with it, according to the Huffingon Post:

Justice Elena Kagan pushed a similar point. She told Clement ... "that maybe Congress had something different in mind than uniformity" in the definition of marriage. Suggesting the law was "infected with prejudice, fear, spite, and animus," Kagan read a portion of the House Report, which said DOMA was meant to reflect Congress' "collective moral judgment and to express moral disapproval of homosexuality."

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In the end, the general consensus from legal analysts was that DOMA is in trouble, though there seemed to be a difference of opinion on the Court about why exactly DOMA should be struck down:


Writing at the SCOTUS Blog, Lyle Denniston said that DOMA very well "may be gone, after a seventeen-year existence." Though Denniston warned that gay-rights advocates should be sure to temper their excitement:

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.

In other words, we are moving forward, but slowly enough that it can sometimes feel like we're frustratingly stationary.

Here, if you're interested, is audio if the SCOTUS hearing on DOMA.

And here is the hearing transcript in full.

[Image from Getty.]