Ever since the Supreme Court agreed to hear the two same-sex marriage cases that are before it this week, Court-watchers have been pointing to Justice Anthony Kennedy as the key to any victory for marriage-equality proponents. Kennedy wrote the expressively worded majority opinions in Romer v. Evans and Lawrence v. Texas, two of the most important Court rulings upholding gay rights, which means that, though he is one of the Court’s conservatives, he’s been seen as a potential swing vote on the marriage cases. Today, in the oral arguments for United States v. Windsor, the case that tests the constitutionality of the federal Defense of Marriage Act (DOMA), those predictions started to make sense. Kennedy’s questioning suggested that he was skeptical about DOMA—though not for the same reasons the four liberal Justices were.
In their questioning, Justices Elena Kagan, Stephen Breyer, Sonia Sotomayor, and Ruth Bader Ginsburg focussed on equal protection and anti-gay animus—the way that DOMA carves out a class of married same-sex couples, those who were legally married in the state where they live, and excludes them from federal laws and benefits accorded married heterosexual couples. As Kagan put it at one point, “when Congress targets a group that is not everybody’s favorite group in the world,” the Court is supposed to examine any resulting laws with heightened scrutiny, to make sure they have a basis other than mere prejudice (or for that matter, moral disapproval or the upholding of tradition, both of which the Court has rejected as justifications for discrimination). As Justice Ginsburg put it, in a memorable new locution, DOMA had created two classes of marriage—“the full marriage and then this sort of skim-milk marriage.”
Kennedy’s objections were more concerned with federalism. Did Congress have the right to enact DOMA in the first place, when the regulation of marriage has traditionally been left up to the individual states? Questioning Paul Clement, the lawyer defending DOMA, Kennedy spoke of “a real risk” of running into “conflict with what has always been the essence of state police power, which is to regulate marriage, divorce, custody.” He also noted that, with DOMA, “Congress doesn’t help the States which have come to the conclusion that gay marriage is lawful.” And when Clement said that if any of the eleven hundred federal laws and regulation mentioning marriage impinged on state powers, “that is a problem independent of DOMA, but it is not a DOMA problem,” Kennedy replied, “I think it is a DOMA problem.”
Kennedy seemed, as in the Proposition 8 case, to have some questions about who had standing to argue the appeal—the Obama Administration had decided not to defend it; Clement was retained instead the by a committee of Congressmen. Still, combine Kennedy’s doubts about the validity of DOMA for federalist reasons with the liberal Justices’ equality concerns, and we could well see a five-vote majority for finding DOMA unconstitutional—and an end to second-class, skim-milk marriages.
[#image: /photos/5909519dc14b3c606c1038ea]Read our full coverage of gay marriage before the Supreme Court.
Courtroom drawing, of Paul Clement arguing in front of Justices John Roberts and Anthony Kennedy, by Art Lien/Reuters.