Based on today’s Supreme Court oral arguments it appears that the Defense of Marriage (DOMA) Act may soon be history. While the oral arguments are not always a reliable indicator of the justices’ opinions, professional court watchers overwhelmingly feel the odds are very good that the Court will strike down the law. SCOTUSblog put the chances of the law being struck down at 80 percent, primarily based on Justice Anthony Kennedy’s statements.
Now that the Supreme Court has posted the audio and transcripts you can judge for yourself. The following exchanges by Kennedy do give the strong impression he will side against the law on federalism grounds. It seems that Kennedy thinks DOMA goes too far by superseding the traditional power of states to regulate marriage.
JUSTICE KENNEDY: Well, it applies to over what, 1,100 Federal laws, I think we are saying. So it’s not — it’s — it’s — I think there is quite a bit to your argument that if the tax deduction case, which is specific, whether or not if Congress has the power it can exercise it for the reason that it wants, that it likes some marriage it does like, I suppose it can do that. But when it has 1,100 laws, which in our society means that the Federal Government is intertwined with the citizens’ day-to-day life, you are at — at real risk of running in conflict with what has always been thought to be the essence of the State police power, which is to regulate marriage, divorce, custody.
JUSTICE KENNEDY: You think Congress can use its powers to supercede the traditional authority and prerogative of the States to regulate marriage in all respects? Congress could have a uniform definition of marriage that includes age, consanguinity, etc., etc.?
GENERAL VERRILLI: No, I’m not saying that, Your Honor. I think if Congress passed such a statute, then we would have to consider how to defend it. But that’s not -
JUSTICE KENNEDY: Well, but then there is a federalism interest at stake here, and I thought you told the Chief Justice there was not. (emphasis mine)
Kennedy is the perennial swing justice. The four liberal justices are likely to rule against DOMA, so if Kennedy does as well it will be struck down.
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