Kennedy’s skepticism could spell doom for DOMA in Supreme Court

Photo by Ted Eytan

Photo by Ted Eytan

By Andrew Scoggin
@AScoggin

Another day, another monumental Supreme Court case.

The court heard oral arguments Wednesday in United States v. Windsor, which deals with the constitutionality of the federal Defense of Marriage Act of 1996. It’s the second straight day of same-sex marriage cases before the court, as Tuesday’s hearing dealt with California’s Proposition 8.

And as with arguments Tuesday, justices wondered whether they should have even accepted the DOMA case. But the actions of one justice could mean trouble for the federal law, with one noted Supreme Court blog citing an “80 percent chance” of the law going off the books.

The crowd outside the court was a bit more subdued Wednesday — maybe a mix of “been there, done that” and the lessened potential for a DOMA ruling to have a broad impact.

While related, these two cases have a major difference — DOMA outlaws federal benefits for same-sex couples, while Prop 8 bans same-sex marriages in California. That has implications on the impact of potential rulings, but also the parties involved.

In the DOMA case, Edith Windsor filed suit against the federal government because she said she overpaid about $363,000 in taxes after the death of her spouse, Clara Spyer. The two married in Toronto in 2007, but because DOMA defines marriage solely as between a man and woman, theirs was not recognized by the U.S. government.

So what would a ruling on DOMA mean for the rest of the country? Let’s go back to that handy chart from The New York Times we cited Tuesday. If the court rules DOMA unconstitutional, federal benefits would take effect for same-sex couples in states that allow them to marry. If ruled constitutional, nothing changes.

The third possibility gets tricky. Justices could decide that it shouldn’t hear the case because both parties, Windsor and the U.S. government led by President Obama’s Justice Department, argue that DOMA is unconstitutional, and House Republicans don’t have the right to defend it in this case. It’s unclear what that could mean, but Windsor would at least recoup that tax payment, and that part of DOMA could go away.

Sure enough, that issue of “standing” again took up a good amount of oral arguments Wednesday. (The court again published audio in the afternoon, if you’re curious.) Justice Antonin Scalia called the Obama administration’s involvement “wholly unprecedented,” in that it calls DOMA unconstitutional and won’t defend it, and yet it continues to enforce it. Vicki Jackson, a lawyer appointed by the Supreme Court to argue against standing, warned against “inter-branch conflicts” and said the court should wait for “another case, another day.”

But judging from what Justice Anthony Kennedy, widely seen as the swing vote, said during arguments, opponents of DOMA may not have to wait long. Kennedy, according to The New York Times, said “it seems to me there’s injury here” in that same-sex couples are not treated the same as others. Justice Ruth Bader Ginsburg compared “two kinds of marriage … full marriage and the skim-milk marriage.”

Props to Ginsburg for perhaps coining a new buzzword (don’t kill this one, Internet), but Kennedy’s comments, including those on marriage and states’ rights, received the bulk of the attention, shown in this tweet from the eminent SCOTUSblog:

The “80%” accounts for Kennedy’s indecisiveness, according to a subsequent tweet from SCOTUSblog. Let’s stay in the Twitterverse for more from NPR’s totally awesome Nina Totenberg:

That seems to be the consensus, although there’s some concern about the Obama administration’s involvement in the appeal process. But again, as we said Tuesday, don’t make too much of these oral arguments — they’re only part of a larger Supreme Court appeals process. We’ll likely know the end result by late June.

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Posted by on March 27, 2013. Filed under Judicial,Recent News,Top News. You can follow any responses to this entry through the RSS 2.0. You can leave a response or trackback to this entry

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