Stanford law professor Michael McConnell agrees with Duncan that Kennedy will be reluctant to sweep too broadly, but does expect his crucial fifth vote to go against DOMA.
Kennedy’s most likely argument, McConnell thinks, is that “the definition of marriage in our constitutional tradition is one better left to the states, and the Congress overstepped its authority when it declared a single nationwide definition of marriage for federal law purposes.”
The case only touches Section 3 of DOMA, which defines marriage for federal law. It does not affect Section 2, which allows states to decline to recognize same-sex marriages performed in other states.
But before it could even get to that question, the court had to decide whether, as things stand, it could decide the case. The procedural dispute focused on whether the U.S. House of Representatives could properly defend the law, once the Obama administration chose not to do so.
The House Republicans, the Obama administration and a lawyer appointed by the court specially to argue the issue spent the first 50 minutes Wednesday discussing whether the House Republican leadership can defend the law in court because the administration decided not to, and whether the administration forfeited its right to participate in the case because it changed its position and now argues that the provision is unconstitutional.
Both Donald Verrilli, the Obama administration's top Supreme Court lawyer, and Roberta Kaplan, the lawyer for Windsor, told the court that views about gay people and marriage have shifted dramatically since 1996.
"Why are you so confident in that judgment? How many states" allow same-sex unions? Justice Antonin Scalia asked Kaplan.
Nine, she said.
"So there's been a sea change since 1996," Scalia said, doubtfully.
But Chief Justice John Roberts jumped on the idea of a rapid shift in opinion to suggest that perhaps gays and lesbians do not need special protection from the court. "As far as I can tell, political leaders are falling all over themselves to endorse your side of the case," Roberts said.
Political power for gay rights has legal implications because the court has historically reserved special status under the equal protection clause for “discrete and insular minorities” that are judged vulnerable in the rough and tumble of majoritarian politics.
The motivation behind the 1996 federal law, passed by large majorities in Congress and signed by Clinton, was questioned repeatedly by Kagan.
She read from a House of Representatives report explaining that the reason for the law was "to express moral disapproval of homosexuality." The quote produced an audible reaction in the courtroom.
Paul Clement, representing the House Republican leadership in defending the law, said the more relevant question is whether Congress had "any rational basis for the statute." He supplied one, the federal government's interest in treating same-sex couples the same no matter where they live.
Clement said the government does not want military families "to resist transfer from West Point to Fort Sill because they're going to lose their benefits." The U.S. Military Academy at West Point is in New York, where same-sex marriage is legal, and Fort Sill is in Oklahoma, where gay marriages are not legal.
Opposing Clement, Verrilli said the provision of DOMA at issue, Section 3, impermissibly discriminates against gay people.
"This statute is not called the Federal Uniform Benefits Act," Verrilli said. The administration wants the court to apply a level of scrutiny it applies to discrimination against other disadvantaged groups and that makes it harder for governments to justify those laws.
Reflecting the high interest in the cases, the court released an audio recording of Wednesday's argument, just as it did Tuesday.
Eric Schulzke writes on national politics for the Deseret News. He can be contacted at email@example.com.
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