Reading the tea leaves from U.S. v Windsor oral arguments

DOMA's days are numbered, the only questions remaining are on what basis the majority of justices will strike it down after 17 years in existence and wehther they will strike it down in this case or another one.  As with Hollingsworth v Perry yesterday, the oral argument began with an hour of exploration of jurisdictional issues about whether the Supreme Court could hear the case at all.  There was some skepticism from the Justices, to the point that they appointed a Harvard Law professor to specifically argue that the U.S. had no standing to bring the case. 

One key reason for that view is that the Obama Administration has ordered its Department of Justice to decline to defend the act and the suit was brought by the Bipartisan Legal Advisory Group of the House of Representatives (a misnomer since the Democratic members of this group support the repeal of DOMA).  Normally, the suit would have been argued by the Solicitor General if the federal government was defending the law.  Justices expressed skepticism about how members of this group were harmed by DOMA, which is required for standing. There was no indication from oral argument today about whether there were 5 justices who would vote for or against dismissing the issue on standing.  Still, the jurisidction and technical question of standing could be used, like in Hollingsworth v Perry, by the Court as an escape hatch if they majority decides that issue is not ripe for decision.

If the Court were to get past the jurisdictional issues to actually decide the merits of the case, it would seem that there are 5 votes to strike down DOMA.  The four liberal justices seemed critical of DOMA.  At one point, Justice Ginsburg had the best quote of the session.  She said, when a marriage isn’t recognized by the federal government, “What kind of marriage is this?...There are two kinds of marriage:  the full marriage and this sort of skim-milk marriage.” Kagan thought that Congress passed DOMA motivated by "dislike, fear, animus" against gays, reasons that the Court said in Romer v Evans was impermissible to justify a law.  The four legal justices seem prepared to strike down DOMA based on equal protection grounds, that federal law unconstitutionally treats one kind of marriage as different from another.

But there may be at least one concurring opinion, an opinion written by a justice who agrees with the legal outcome but disagrees on the reasoning.  Justice Kennedy, often the swing voter in federalism cases, seemed very troubled that the federal government was intruding into an area of law that is traditionally handled by the state governments; the defining of marriage is usually a state issue.  He asked, "Question is whether the federal government under our federal scheme has authority to regulate marriage?"  His answer would be, "No." He believed that the feds should stay out of the marriage business and continue with , "the historic commitment of marriage and questions of the rights of children [left] to the states.” Sotomayor similarly asked, "What gives the federal government the  right to be concerned at all about what definition of marriage is?"

Regardless of whether the Court kicks this case on jurisdictional grounds, there is still a victory here.  In contrast to Charles J. Cooper who argued on behalf of Prop 8 proponents yesterday, Paul Clement, the former Solicitor General under  George W. Bush, ran like the wind from typical and frankly tired, conservative arguments against gay marriage.  In Clement's defense of DOMA, he did not mention the procreative rationale for marriage nor did he say anything about why gay marriage is supposedly harmful to children. 

The decisions on Hollingsworth v Perry and U.S. v Windsor are expected in late June.