SCOTUS Seems Poised to Strike DOMA

 

Given Supreme Court Justice Alito thinking the idea of same sex marriage is newer than the cell phone—to which David Mixner takes scathing exception!—and Justice Scalia constantly referring to California Attorney General Kamala Harris as HE and suggesting that crusty old Southern Sen. Strom Thurmond could be a sperm donor until the day he died at the Prop. 8 trial yesterday – it’s getting harder and harder to think these political conservatives are “in touch” with the American people. As ThinkProgress reports,

new poll from CNN/ORC International shows that 56 percent of Americans believe the federal government should recognize any same-sex marriage that is legal in the states, while 43 percent disagree. This is three points higher than CNN’s poll released last week, which found that 53 percent support marriage equality and 44 percent oppose it.

similar poll from CBS News found an even more favorable result: 60 percent believe the federal government should recognize same-sex marriage while only 35 percent disagree. Nevertheless, CBS polling also found that 53 percent support full marriage equality and 39 percent oppose it. Only 36 percent believe having same-sex relations between consenting adults is wrong.

But a report from NBC’s Pete Williams on the Supreme Court hearing on the Defense of Marriage Act today suggests that there may be five votes to declare Sec. 3 of DOMA unconstitutional based on the question of whether  the federal government overstepped its bounds by creating DOMA as a law in 1996 in the first place since Congress traditionally defers to the states to define marriage. Justice Kagan suggested that Congress was acting with “moral disapproval” of gays, which is discriminatory.

Rex Wockner, who is now working for GLAAD, interviewed Shannon Minter, Legal Director for the National Center for Lesbian Rights and Jon Davidson, Legal Director of  Lambda Legal, immediately after the hearing:

Minter: “I think we’re going to win. I think the court is going to reach the merits on this case and I think they’re going to say that DOMA violates the federal constitution, probably for equal protection reasons. … I do think DOMA is dead.”

Davidson: “I’m very encouraged after the arguments today. … I had a sense that we had five justices that were ready to rule our way. … None of the anti-gay vehemence expressed in some prior cases surfaced at the court. Not even Justice Scalia seemed prepared to make anti-gay comments.”

Here’s an excerpt from Buzzfeed’s Chris Geidner’s initial report:

Noting that a same-sex couple could be married in a state but remain unable to retrieve any of the multitude of federal marriage benefits, Justice Ruth Bader Ginsburg asked Paul Clement, who was defending the law on behalf of the House Bipartisan Legal Advisory Group, “What kind of marriage is this?” [She compared it to “skim milk.”]

Justice Anthony Kennedy appeared ready to side with the court’s liberal faction, noting that the more than 1,100 federal marriage benefits showed the 1996 law’s definitions affected the many ways the federal government is “intertwined with the daily lives” of couples married under state law.

Although the justices spent the first half of Wednesday’s argument discussing whether the court had jurisdiction to hear the case, few justices signaled any discomfort with deciding the underlying constitutional questions raised by the case.

Edith Windsor’s case was filed Nov. 9, 2010, and, though not the first challenge to the law, it was the one that the justices chose to review. Both the trial court and court of appeals agreed with Windsor, at which point the decision was appealed, setting up Wednesday’s review.

ThinkProgress also covered the hearing:

During oral arguments this morning, U.S. Supreme Court Chief Justice John Roberts appeared to at least entertain the argument by House Republicans that gays and lesbians are too politically powerful for constitutional protection.

Roberts suggested that gays and lesbians must be “politically powerful” because politicians are “falling all over themselves” to endorse gay marriage, according to a tweet by Mother Jones’ Adam Serwer. The brief by Paul Clement, who represented the House of Representatives in defending DOMA, had reasoned that gays and lesbians are winning political battles and “have the attention of lawmakers,” an absurd claim since the “power” assertion is factually inaccurate, and because such an argument would also cancel out protections for racial minorities and women.

Roberts and his fellow conservatives also expressed concern over the White House’s decision not to defend the Defense of Marriage Act, with Kennedy calling it “very troubling” and Justice Antonin Scalia criticizing the Justice Department’s “new regime.”

Photo of rally outside Supreme Court on March 27, 2013 courtesy GLAAD. Illustration of the Justices by Art Lien/NBC News.

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