Word from the Supreme Court on DOMA: 'Looking Good' for Gay Rights — Maybe

The Supreme Court sounds like it maybe be ready to strike DOMA down, but new questions from Justices Anthony Kennedy and Sonia Sotomayor may leave a more sobering reality for advocates of gay rights: After this week's historic proceedings, the Court may not punt on California's Prop.8, and there may not be a sweeping overall ruling on the two same-sex marriage cases.

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The Supreme Court justices have finished hearing oral arguments on the Defense of Marriage Act, and the early word wasn't unlike what we heard and read Tuesday on Proposition 8: The Roberts Court might have concerns on ruling in the case of United States vs. Windsor. Then came the big part of the hearing, as SCOTUSblog (now with more depth) and others were reporting we might get the big impression many were anticipating: The Supreme Court sounds like it maybe be ready to strike DOMA down, but the new questions from Justices Anthony Kennedy and Sonia Sotomayor, who on Tuesday voiced skepticism and reiterated that today, may leave a more sobering reality for advocates of gay rights: After all this week's historic proceedings, the Court may not punt on California's Prop.8, and there may not be a sweeping overall ruling on the two same-sex marriage cases. Scroll down for constant updates from each of the justices ...

Update, 1:50 p.m Eastern: The transcript is now out available.

Update, 2:47 p.m. Eastern: The audio is also available

Update 2:48 p.m. Eastern: Here's our easy-to-read annotated transcript of today's comments.


The big news comes from the valuable wonks over at SCOTUSblog, who are predicting that there's an 80 percent chance — Nate Silver are you listening? Do you agree? Call us — that DOMA gets struck down:

Final update: #scotus 80% likely to strike down #doma. J Kennedy suggests it violates states’ rights; 4 other Justices see as gay rights.

— SCOTUSblog (@SCOTUSblog) March 27, 2013

They added:

Those four justices (which should come as no surprise) are Breyer, Sotomayor, Ginsburg, and Kagan. And if you think about it, it's not really that bold of a statement considering that the more liberal bloc of the court, which usually votes together, give any case an 80 percent chance of doing anything. Though HuffPo's Ryan Reilly came away with a similar perception:

But Jeffrey Toobin, as always, puts that "good" news in context, with the reality check from the swing vote, Kennedy:

And perhaps this is for the clue and perhaps may reveal that states have the right to decide on same-sex marriage and that the Court may rule on Prop. 8. From these pundits and actual Court comments Tuesday, there was a perception that Kennedy might not even rule on the case and allow a lower court ruling to stand. Here's how he and his Supreme colleagues sounded on Wednesday hearing arguments on DOMA, according to initial reports — we'll add more quotes an analysis on each of the nine justices as they come in:


Justice Kennedy Wanted to Talk About Federalism. Kennedy, who's consistently seen as the swing vote, wanted to make clear the idea that he's questioning or at least thinking about whether or not DOMA violates states' rights warning of "risks."

"Justice Kennedy, who has championed states' rights at the court, says there's no need to reach the equal-protection issue if the federal government had no authority to supersede state marriage laws in the first place," reports The Wall Street Journal's Jess Bravin, and Kennedy appeared to ask: 

Does the federal government using its own definition of marriage raise any federalism issues by stepping on the states’ traditional prerogative of family law?

Those are big words from Kennedy and if they hold true, it sounds like he's in favor of striking DOMA down. And the guy even used the words "illogic" to describe the assumption that Congress didn't know DOMA was unconstitutional when it was passed, an argument put forth by DOMA's defending lawyer Paul Clement:

Justice Sotomayor Wants to Know Who Died and Gave the Federal Government the Right to Be Concerned About Marriage. If you want to hear an argument about keeping the government out of private lives, Sotomayor did a pretty good job of it, reminding the Court that states control marriage — and more or less furthering Kennedy's point:

That seems to be in line with... being in line with Kennedy on Tuesday, when Sotomayor asked: "If the issue is letting the states experiment and letting the society have more time to figure out its direction, why is taking a case now the answer?" And that coupling could suggest an all-or-nothing approach to Prop. 8, even as the DOMA-strikedown messaging continued...

Justice Breyer Had the Best Zingers. After a relatively quiet Tuesday in the Prop. 8 case, Breyer was on fire today, first pointing out the problems of "uniformity" that DOMA's lawyer, Clement, was arguing. Breyer stressed that striving toward uniformity argument could just as easily be used to deny large swaths of the population (20-30 percent) the right to marry. WaPo reports:

"You’re saying uniform treatment is good enough, no matter how odd, not matter how irrational," Breyer asked. "You see where I’m going with that?"

"I see exactly where you’re going, Justice Breyer," Clement responded, prompting laughter from the crowd.

Breyer, as The Wall Street Journal reports, was more forthright in bluntly stating the pro-DOMA and perhaps problematic argument:

Justice Breyer summarizes the pro-DOMA argument: It was a way for Congress to stay out of the national debate over marriage by letting states act as they wished but retaining the conventional heterosexual definition for its own purposes.

Justice Kagan Was Not a Fan of the '90s, or Prejudice. Kagan raised the question of what was really driving lawmakers to pursue DOMA. And whether or not prejudice was a part of that. She asked (via The Washington Post) about the "morality" and motivation of those lawmakers:

"When Congress targets a group that is not everyone’s favorite group…We look at those cases with some vigor,” she said.

Kagan read directly from the House report questioning the morality of homosexuality, asking Paul Clement if he thought "this sends up a red flag that something is going on."

That line of questioning continued, with Kagan driving home the idea of prejudiced lawmakers:

“You have to understand in 1996, something’s happening,” he said.

Kagan, however, suggested “moral disapproval” was a key factor in the act’s passage.

“Is that what was going on in 1996?” she asked, prompting a murmur from the audience.

“If that’s enough to invalidate the statute, you should invalidate the statute,” Clement replied.

Justice Roberts Is Not a Fan of Obama Right Now, and Doesn't Think Gay People Are a Powerless Minority. One of Roberts's big gripes (see "STANDING" section below) is that he's not particularly fond of the Obama administration for deciding that it wouldn't defend DOMA and, instead, would foist that decision onto the Supreme Court by turning the administration into a plaintiff against the very law the White House once signed into action.

The other point the Chief Justice wanted to make clear was that the gay community is not a helpless minority. The Wall Street Journal reports:

Chief Justice Roberts doesn't dispute that the gay marriage movement may prevail, but he suggests that's evidence gay people are not a powerless minority entitled to special protection from the courts. The "sea change" in public opinion results from the gay community's political effectiveness, he says, adding: "Political figures are falling over themselves" to take your side.

This idea—that gay people are politically powerful and are, theoretically not marginalized—sort of contradicts Kagan's point and did not sit well with Mother Jones's Adam Serwer: 

And another Serwer tweet:

Justice Scalia Believes the Culture War Is Not Over. "Why are you so confident that your side has won the culture war?," Scalia asked Edith Windsor's lawyer. Windsor's side is the idea that people are more accepting of gay people and gay relationships and things have changed since the way gay people were perceived in 1996. Scalia might not have realized that a Washington Post/ABC poll released last week found that support for gay marriage was at 58 percent, an all-time high.

Justice Alito Liked Hypotheticals. Alito is pretty much expected to vote with the conservative justices. But what we did notice that he might win the award of Justice Most Likely to Run with Amazing Hypotheticals:

And one more:

Justice Ginsburg Doesn't Want You to Have a "Skim Milk" Marriage. If you're looking for a hashtag, fake Twitter account, or some other way to completely reduce this complex argument of federal law versus States Rights and benefits for gay people, then you might want to start getting familiar with "Skim Milk Marriages." Essentially, Justice Ginsburg made it clear that she believes DOMA takes all the fat, or good stuff out of marriages (like favorable tax treatment) and waters it down. DOMA, according to Ginsburg, also creates a two-tiered system. The New York Times reports:

There are two kinds of marriage. Full marriage and the skim-milk marriage.


The first impressions of the first portion of the DOMA hearing sound like the questions which dominated yesterday's Prop 8. arguments — whether the Court should to take up the federal benefits portion of the law because the two sides essentially agree and House Republicans don't have the so-called "standing" to defend it. The bigger part of DOMA — whether the 1996 law is constitutional or not — is being heard now, and that could lead to direct revelations about benefits for same-sex couples in the nine states (along D.C.) where they are recognized as married.

But as for taking up the case, the justices may be as troubled by the Obama administration's turning its back on a law signed by President Clinton as they were when they hired a lawyer to argue this side of the case. And it could be an elaborate bluff by the conservative justices (remember the surprise of Obamacare and Kennedy not being the swing vote?). But SCOTUSblog sent out this message...

...Reuters ran this message on their wire service this morning during the court's first break:


The all-caps make it seem ominous right?

And then came this from The Wall Street Journal:

Chief Justice Roberts repeatedly expressed irritation at the Obama administration, telling Ms. Jackson, the court-appointed lawyer, and without specifically mentioning the administration, that perhaps the government should have the "courage" to execute the law based on the constitutionality rather instead of shifting the responsibility to the Supreme Court to make a decision. 

"It's very troubling," Justice Anthony Kennedy is quoted as saying by Reuters. Kennedy followed up and broke down the argument basically stating Presidents shouldn't be enforcing things they don't think are constitutional, reports The WSJ:

Justice Anthony Kennedy cited the controversial and "questionable" practice of presidential signing statements as an example. He said if the president doesn't think a law is constitutional then he shouldn't sign it. And said the same principle perhaps applied in this case-- meaning if the president believes the law is unconstitutional, he shouldn't enforce it.

That isn't unlike what we heard leaking out Tuesday—that Justices Kennedy and Roberts clearly stated their concerns about "standing," a.k.a. letting a private citizen defend public law, a.k.a. questioning whether or not the private citizen has any standing to defend a law that doesn't injure them and doesn't threaten to.

There's no real way to tell if the justices today are more or less "troubled" than they were Tuesday, and we won't get transcripts or audio until about 1 p.m. Eastern. And to be clear, it's not like these justices are voicing their concerns out of the blue—the first portion of the Court's hearing this morning is supposed to focus on the jurisdiction: "Legal experts differ about the more general effect of a ruling that the Supreme Court lacks jurisdiction, but most agree that such a decision is unlikely and would, one way or another, effectively spell the end of the challenged part of the 1996 law," reported The New York Times's Adam Liptak.

Reporters and justices are now back listening to the second, and perhaps more intriguing part of the DOMA argument: whether or not the law is constitutional. Stay tuned.

This article is from the archive of our partner The Wire.