Tea leaves from oral arguments: Supreme Court leaning towards striking down DOMA?

posted at 1:21 pm on March 27, 2013 by Allahpundit

A rare instance in which the left is decidedly pro-federalism. The word from Reuters and SCOTUSblog:

A bit more detail from the WSJ liveblog:

Justice Kennedy, however, jumped in with federalism concerns, questioning whether the federal government was intruding on the states’ territory. With there being so many different federal laws, the federal government is intertwined with citizens’ day-to-day lives, he said. Because of this, DOMA runs the risk of running into conflict with the states’ role in defining marriage, he said.

But maybe another standing issue, a la yesterday?

The White House refuses to defend DOMA in court, just as California’s government refuses to defend Prop 8. Do other parties (i.e. House Republicans) who are defending DOMA really have a legal stake in the case or is it mere political interest, in which case there’s no standing?

DOMA’s an especially hard sell with this Court. Conservatives stand a chance on Prop 8 because that case pits gay rights against state sovereignty, two concepts Kennedy has stood for fairly reliably throughout his career. It’s not crazy to think he’d side with the latter over the former given that trends in public opinion might soon solve the problem for him. DOMA, however, aligns the two: He can strike a blow for states’ rights and for gay rights by voting to strike the law. And as SCOTUSblog notes, the Court’s four Democrats are a lead-pipe cinch to vote against it. There hasn’t been an unpredictable vote on social issues among the liberal wing in decades.

Obvious question: How does the White House decide which federal laws aren’t worthy of being defended by the DOJ? The Court’s conservatives would like to know.

“It’s very troubling,” said Justice Anthony Kennedy…

Chief Justice John Roberts pressed government lawyer Sri Srinivasan on how the government will now decide which laws to defend. “What is your test?” Roberts asked.

Justice Antonin Scalia, who served in the Justice Department in the 1970s, criticized its “new regime.”

Two more tidbits from today’s oral arguments, and these may have some bearing on the Prop 8 ruling. Compare and contrast. First, Roberts:

And second, via the WSJ, Clement vs. Kagan:

Justice Kagan said the House report that accompanied the legislation suggested at least some lawmakers had improper motives to enacting the law, such as for the purposes of voicing disapproval of homosexuality. Mr. Clement said the high court has never invalidated a statute on that basis.

Both of those remarks bear on whether the Court might find either DOMA or Prop 8 a violation of equal protection. The point of Roberts’s comments is that, traditionally, the Court only applies “heightened scrutiny” to laws that discriminate against groups that are regarded as being relatively politically powerless. The point of constitutional rights is to protect individuals or minorities who are threatened somehow by the majority, right? But if 53 percent of the country now supports gay marriage, how exactly are gays politically powerless or being threatened? That suggests Roberts would not apply “heightened scrutiny” to DOMA or Prop 8, which in turn means he’s more likely to uphold both laws. Without heightened scrutiny, all the government has to do is show that the law it’s defending has some “rational basis” and the Court will uphold it. (Although do note: Most gay-marriage supporters argue that Prop 8 and other bans have zero rational basis, so it’s possible that Roberts would vote to strike down the laws even without applying heightened scrutiny.) Clement’s remark to Kagan touches on the same point: The Court has never ruled that government discrimination against gays is illicit and thus worthy of heightened scrutiny for purposes of equal protection the way it is for racial minorities. The potential significance of these cases is that the Court might end up tackling that issue head on and addressing whether government discrimination against gays remains more or less legally permissible. But given all the concerns about standing today and, especially, yesterday, it seems a more modest ruling is likely.

Update: Speaking of gay marriage and states’ rights, Gabe Malor flagged this statement from Ted Cruz as being significant. I agree.

Sen. Ted Cruz said Tuesday that he was against same sex marriage and hoped the U.S. Supreme Court would continue to let individual states grapple with the issue.

“I support traditional marriage between one man and one woman,” Cruz said after speaking to the Richardson Chamber of Commerce. “The Constitution leaves it to the states to decide upon marriage and I hope the Supreme Court respects centuries of tradition and doesn’t step into the process of setting aside state laws that make the definition of marriage.”

Says Gabe:

“FMA” is of course “Federal Marriage Amendment,” which is what I assume Huckabee and social conservatives will start demanding from prominent Republicans if the Supreme Court ends up legalizing gay marriage nationwide before 2016. The point of the FMA traditionally has been to ban all attempts at legalizing SSM by stating in the U.S. Constitution that marriage is between one man and one woman. That would take the matter entirely out of the states’ and the courts’ hands. Would Cruz — and Paul and Rubio — oppose that on federalism grounds? If so, will Huck et al. compromise by pushing instead for a new version of the FMA that would return the issue to the states rather than ban the practice of gay marriage outright? It’s hard for me to believe social conservatives would settle for that since, given the poll trends, it would ensure legal SSM in most of the country over the next 25 years anyway. But in that case, what are Cruz/Paul/Rubio to do?

Update: A nice antidote to some of the sanctimony this week:

Follow-up: Was repealing it a particular priority of the liberal base at the time?


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