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The Supreme Court is unlikely to uphold DOMA

Having listened on C-SPAN to the oral argument in the DOMA case, I believe the Supreme Court will hold DOMA unconstitutional if it reaches the merits. Presumably, the Court’s four liberal Justices would reach that conclusion. And Justice Kennedy seems ready to join them.

Kennedy’s questioning of Paul Clement, who was defending DOMA on behalf of the House leadership, demonstrated considerable concern that DOMA constitutes an unwarranted intrusion by the federal government into the domain of states — in other words, that it raises a serious federalism problem. Under DOMA, members of same-sex marriages recognized by states are denied benefits available under federal law to heterosexual couples in the same states.

In a sense, then, the federal government can be seen as overriding some state definitions of marriage, and marriage traditionally is the concern of the states. As Ed Whelan argues, however, the fact that DOMA defines marriage and spouse for purposes of provisions of federal law does not mean that it regulates marriage and intrudes on state authority over marriage.

Perhaps the most telling Kennedy moment occurred at the beginning of the United States’ argument, presented by Solicitor General Verrilli. Chief Justice Roberts immediately extracted from Verrilli a denial that DOMA presents a federalism problem.

Kennedy promptly gave Verrilli — whom the Supreme Court has “bailed out” before — the opportunity to back away from his concession on federalism, which Verrilli did to some extent. After that, Kennedy had no questions for Verrilli or for Roberta Kaplan who represents the party who lost benefits because of DOMA.

We all know that oral argument can be an unreliable guide to figuring out how a case will be decided. And it’s certainly possible that, given the complicated standing and jurisdictional issues in this case, the Court won’t reach the merits.

If it does reach the merits, though, the odds heavily favor a decision striking down DOMA, it seems to me.

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