Court Sounds Skeptical About DOMA

Kennedy seems concerned that it violates states' rights

By Kevin Spak,  Newser Staff

Posted Mar 27, 2013 12:15 PM CDT

(Newser) – The Supreme Court has concluded its oral arguments on the Defense of Marriage Act (the second half of its gay marriage double bill), and most observers think things are looking bad for the 1996 law; in a tweet, SCOTUSblog predicted that the court was "80% likely to strike down" the law. Here's what went down:

  • The key vote, Anthony Kennedy, seems concerned that the law violated states' rights, according to SCOTUSblog. "The question is whether the federal government, under a federalism system, has the authority to regulate marriage," he said, according to the New York Times.

  • The court's liberal justices, meanwhile, approached the case from a gay rights perspective. The system, Ruth Bader Ginsberg complained, creates "two kinds of marriage: Full marriage, and the skim-milk marriage."
  • Much time was spent discussing the Obama administration’s decision not to defend the law, Reuters reports. Kennedy found the decision "very troubling," while Scalia said we were in a "new world" and "totally unprecedented."
  • CNN legal analysts have said that if the court wants to punt on the issue, it could declare that House Republicans did not have the standing to defend the law in the first place. But Stephen Breyer pointed out a 1983 case in which the House was at odds with INS.
  • John Roberts expressed irritation that the Obama administration would continue to enforce the law, but not defend it. "I don't see why he doesn't have the courage of his convictions," he said. He also asked a government lawyer how the Justice Department would decide which laws to defend in the future. "What is your test?"

Rebecca Winchell  of Columbia, Md. sings in front of the Supreme Court in Washington, Wednesday, March 27, 2013.
Rebecca Winchell of Columbia, Md. sings in front of the Supreme Court in Washington, Wednesday, March 27, 2013.   (AP Photo/Carolyn Kaster)
Wyatt Tan and Mark Nomadiou, kiss in front of the Supreme Court in Washington, Wednesday, March 27, 2013, prior to the start of a court hearing on the 1996 Defense of Marriage Act (DOMA).
Wyatt Tan and Mark Nomadiou, kiss in front of the Supreme Court in Washington, Wednesday, March 27, 2013, prior to the start of a court hearing on the 1996 Defense of Marriage Act (DOMA).   (AP Photo/Carolyn Kaster)
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