Roll Call: Latest News on Capitol Hill, Congress, Politics and Elections
November 28, 2014

Grim Prospects for DOMA

After a lengthy oral argument in United States v. Windsor on the constitutionality of the Defense of Marriage Act that included nearly an hour of debate on whether the Supreme Court could even rule on the case, Lyle Denniston believes that the “law may be gone, after a seventeen-year existence.”

“Justice Anthony M. Kennedy seemed persuaded that the federal law intruded too deeply into the power of the states to regulate marriage, and that the federal definition cannot prevail… Kennedy also seemed troubled about the sweeping breadth of DOMA’s Section 3, noting that its ban on benefits to already married same-sex couples under 1,100 laws and programs would mean that the federal government was “intertwined with citizens’ daily lives.’ He questioned Congress’s very authority to pass such a broad law.”

“But, if the Court were to do that based on states’ rights premises, the final ruling might not say much at all about whether same-sex couples were any closer to gaining an equal right to marry under the Constitution. There did not appear to be a majority of Justices willing to strike down the 1996 law based on the argument that the Obama administration and gay rights advocates have been pressing: that is, the law violates the Fifth Amendment guarantee of legal equality in general.”

  • Lorehead

    It would be very bizarre for the Supreme Court to rule that, if the President agrees that a law is unconstitutional, he can enforce it, then refuse to defend it, and the case of the injured party will be automatically dismissed regardless of what the government did to her. I’m no lawyer, but that can’t be right.

    Let’s not forget that Kennedy is the author of the landmark Lawrence v. Texas decision.

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