Experts said that based on Wednesday’s arguments, the U.S. Supreme Court appears willing to strike down the Defense of Marriage Act.
Gay rights lawyer Jon W. Davidson said Wednesday that the U.S. Supreme Court was likely to permit married same-sex couples to have federal benefits.
Davidson, legal director of Lamba Legal, said there appeared to be five justices willing to strike down the federal prohibition on recognizing same-sex marriages.
The high court seemed likely to overturn the law either on grounds that it discriminates against lesbians and gay men without a valid reason or because it usurps the traditional state power to regulate marriage, he said.
He said Justice Anthony Kennedy, considered a swing vote in gay rights cases, seemed particularly concerned that the federal government was exerting its authority over the states on marriage questions. Marriage is typically a matter governed by state law.
Davidson also noted that Kennedy again raised the fact that children of same-sex couples are affected. Kennedy also expressed concern for the children of gay unions during Tuesday’s argument over Proposition 8.
“The children clearly seem to be on his mind,” Davidson said.
He said there was an audible gasp in the courtroom when Justice Elena Kagan read from an official congressional report that one of the stated purposes of DOMA was to express moral disapproval of homosexuality.
“I think a lot of people didn’t realize that Congress had been that upfront” about its motives when the law was passed in 1996, he said.
Kate Kendell, executive director of the National Center for Lesbian Rights, said after attending the court’s hearing that she believed there were five justices willing to rule on the constitutionality of the federal law.
“By June, DOMA will be history,” Kendell said.
She said the justices appeared more relaxed during the hearing on the federal law than they had been Tuesday in the arguments over Proposition 8, California’s ban on same-sex marriage.
“When the judges first walked in [Tuesday], they all looked a bit grim-faced,” said Kendell. “And today they walked in, and they were all smiling a bit.”
She surmised that the court might be more deeply divided over the Proposition 8 case than the DOMA challenge.
She said she was “really stunned” when Justice Samuel Alito, who she expects will vote in favor of Proposition 8 and the federal marriage law, used the phrase “loving and committed” to describe same-sex couples.
“When he uttered that sentence, there was a little bit of an intake of breath from several people sitting around me,” Kendell said. “Even a justice who is clearly diametrically opposed to us on this policy issue talked about us in very human terms imbued with dignity.”