DOMA may be doomed. The Defense of Marriage Act appears to be splitting the US Supreme Court, but not the same way that Prop 8 was. This could set the stage for it to pass in a 4+1 to 4 verdict. According to SCOTUS Blog “Final update: #scotus 80% likely to strike down #doma. J Kennedy suggests it violates states’ rights; 4 other Justices see as gay rights.”
This is not unheard of. Many cases have been decided by majorities that do not all agree on the reasons for doing so. The big question will be whether or not the Court will strike down DOMA as a whole or just in part. DOMA is, even to a layman, unconstitutional as it violates several clauses of the Constitution including, it should be noted, the Full Faith and Credit Clause requiring all states to honor the contracts of each state.
Justice Kennedy’s line of questioning could be problematic for things like Social Security, Medicare and Medicaid since those who oppose those have been looking to the DOMA case in order to bolster their anti-federalist attitudes; however, Kennedy might word his opinion in such a manner as to blunt any ability to use this opinion to attack those institutions.
Numerous analysts have begun to claim that this could be the end of DOMA. NBC’s Pete Williams believes that there are at least five votes to strike DOMA. CNN legal analyst Jeffery Toobin said that he thinks “DOMA’s in trouble and I think it’s in trouble because Anthony Kennedy was repeatedly concerned that the Defense of Marriage Act violates states’ rights.”
He went on to say “Anthony Kennedy as we all know the swing vote on this Court is someone who is concerned about gay rights although he said very little, I think nothing about the issue of whether the Defense of Marriage Act violated gay people’s constitutional rights. He was clearly very concerned that the Defense of Marriage Act was invading the province of the state to define marriage. That’s a state function, usually. And that would certainly be suggesting that he was going to strike down the law. And certainly the other liberals, the four Democratic appointees looked like they were going to vote to strike it down.”
As soon as audio and transcripts are available, we shall post them.