Report: Supreme Court '80% Likely' to Strike Defense of Marriage Act

After an indecisive round of oral arguments Tuesday on the question of California's controversial Proposition 8 gay marriage ban, the Supreme Court signaled today that it may be prepared to hand gay rights advocates a national victory over the course of two hours of oral arguments in the case U.S. vs Windsor.

That case challenges section 3 of the federal Defense of Marriage Act (DOMA). Section 3 of DOMA bans the Federal government from extending marriage benefits to same sex couples, even in cases where an individual state has recognized those couples as married.

Shortly after oral arguments concluded, the Peabody award winning Supreme Court watching blog SCOTUSblog posted the following Tweets:

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

@nprpolitics our 80% number accounts for Justice Kennedy not being completely decisive.

— SCOTUSblog (@SCOTUSblog) March 27, 2013

Subsequently, SCOTUSblog's main court reporter, Lyle Denniston, posted a longer recap of oral arguments suggesting that section 3o of DOMA had a very weak chance of surviving on the basis of the performance by swing vote Justice Kennedy, albeit for narrower reasons than gay rights advocates might like:

Justice Kennedy told Clement that there was “a real risk” that DOMA would interfere with the traditional state authority to regulate marriage.   Kennedy also seemed troubled about the sweeping breadth of DOMA’s Section 3, noting that its ban on benefits to already married same-sex couples under 1,100 laws and programs would mean that the federal government was “intertwined with citizens’ daily lives.”   He questioned Congress’s very authority to pass such a broad law.[...]

There did not appear to be a majority of Justices willing to strike down the 1996 law based on the argument that the Obama administration and gay rights advocates have been pressing: that is, the law violates the Fifth Amendment guarantee of legal equality in general.[...]

The Court, although it has been dealing with gay rights cases for years, has never spelled out a specific constitutional standard for judging laws that allegedly discriminate based on homosexuality.   The indications on Wednesday that the DOMA case might be decided without supplying such a standard, since a decision based on interference with states’ prerogatives would not require the creation of a test based on equality principles.

There was a third lawyer in the case to discuss the constitutional issue, New York attorney Roberta A. Kaplan, representing the New York City woman who had successfully challenged DOMA in this case — Edith Schlain Windsor, an eighty-three-year-old widow of a same-sex marriage, who sat in the second row of the audience to watch the Court deal with her case.  Kaplan seemingly missed several opportunities, in answering the Justices’ questions, to the apparent consternation of gay rights lawyers in the attorney section.

Talking Points Memo outlined the case in similarly stark terms for supporters of DOMA, describing the hearing as the law "taking a beating," and pointing out that even the three Justices that seemed to support it (Chief Justice John Roberts and Justices Antonin Scalia and Samuel Alito) were more preoccupied with arguing over whether the case should be heard than with defending the law.

Of course, as with any oral argument, it is necessary to note that often the Justices go in completely different direction than the questioning at oral argument indicates, as was the case last year with the Obamacare case HHS v. Florida. However, in the event that that happens in this case, it looks likely that the only way it could happen would be if Kennedy decided there was no standing by the court to hear the case, given the irregular appeals process that brought it up.

A nationwide vindication of DOMA appears dramatically less likely.