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After Today’s Arguments, DOMA Reportedly In Trouble

800px-United_states_supreme_court_buildingThe SCOTUS Blog reports that the Justices could very possibly strike down the Defense of Marriage Act:

Justice Kennedy told Clement that there was “a real risk” that DOMA would interfere with the traditional authority of states to regulate marriage.   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.

Moreover, Kennedy questioned Clement’s most basic argument — that Congress was only reaching for uniformity, so that federal agencies would not have to sort out who was or was not married legally in deciding who could qualify for federal marital benefits, because some states were on the verge of recognizing same-sex marriage.

Along with sharply negative comments about DOMA by the Court’s four more liberal members, Kennedy’s stance could put the law on the edge of constitutional extinction.

If the Supreme Court does strike down the law, it will most likely be on the grounds of states’ rights and not based on the argument of the Obama administration and gay rights advocates — that DOMA violates the Fifth Amendment guarantee of legal equality.

    • Derek Williams

      Farewell DOMA, it was terrible knowing you.

      Mar 27, 2013 at 4:06 pm · @ReplyReply to this comment ·
    • Captain proton

      even Bill O’Reilly is saying that gay marriage opponents don’t have a good enough argument…

      Mar 27, 2013 at 4:37 pm · @ReplyReply to this comment ·
    • gaymaniac

      Well, it seems that ONLY PARTS of DOMA are going down.

      Mar 27, 2013 at 5:02 pm · @ReplyReply to this comment ·
    • 1EqualityUSA

      gaymaniac, then we should only have to pay parts of our taxes.

      Mar 27, 2013 at 5:32 pm · @ReplyReply to this comment ·
    • Taurox

      I actually agreed with Bill O’Reilly on almost all he said in that video. WTF is happening to me.

      Mar 27, 2013 at 5:51 pm · @ReplyReply to this comment ·
    • gaymaniac


      You are 100% correct. The problem is, the current SCOTUS is more conservative than the former Burger Court(Roe v Wade). Because of that, they are not going to rule in ’50-state wide’ fashion. Ironically that maybe a good outcome-state by state and step by step, will take out the argument of ‘it was imposed on us by evil liberal and progressive big government’ comminng from the radical right fundamentalists. The moment is on our side and we will ‘eradicate’ them in another 5 years or so.

      Mar 27, 2013 at 6:09 pm · @ReplyReply to this comment ·
    • jwrappaport

      Some good will come of these cases, but the tenor of the questions in both left me very angry and sad.

      Mar 27, 2013 at 6:24 pm · @ReplyReply to this comment ·
    • MuscleModelBlog.com

      Bill O’Reilly…saying that the arguments against marriage equality are weak…am I hearing this correctly?

      Mar 27, 2013 at 9:28 pm · @ReplyReply to this comment ·
    • MickeyP.

      Bill O’Reilly bitches that Bill Clinton is a liar concerning DOMA. How many of you think O’Reilly is a friggen hypocrite? If I remember correctly,he has almost always spoken out against gay marriage! NOW,he’s on our side? And he call Clinton a liar? At least Clinton apologized.Whether he means it or not,is another question. But that’s more than O’Reilly has done! Personally,I think they both suck,but that’s just my opinion. As far as O’Bama is concerned,yes,he was against us,yes he did not believe in gay marriage. But look at all that he has done. He actually looked into his heart,talked to his children and made a very strong effort to evolve his opinion. He is the ONLY President to EVER fight for us. Say what you want about our President,but he has my respect.

      Mar 27, 2013 at 11:02 pm · @ReplyReply to this comment ·
    • 1EqualityUSA

      Gaymaniac, Having our rights voted on by other Americans is rotten to the core.

      Mar 28, 2013 at 12:49 am · @ReplyReply to this comment ·
    • Dionte

      Did everybody else’s rights get voted on or is this a special case for us?

      Mar 28, 2013 at 1:08 am · @ReplyReply to this comment ·
    • Elloreigh

      @gaymaniac: The Court can only rule on the case before them. DOMA has three sections. Section 1 is the title information. Section 2 deals with recognition by the states of each others’ legal marriages (tells them they don’t have to recognize the same-sex marriages of other states).

      What the current DOMA case deals with is just Section 3 – the definition of marriage for interpreting federal laws.

      The plaintiff is suing due to the lack of federal recognition, not the lack of recognition between states. That means her case is only relevant to Section 3 of DOMA. There was never any expectation that this case would have the outcome of striking down DOMA in its entirety.

      Section 3 is the easier target as well, calling into question the ability of the federal government to regulate something that isn’t encompassed by any of the powers reserved to it. It’s possible to strike this down just on this concept of federalism alone, without having to meet the higher bar of qualifying as a suspect class for a claim of equal protection infringement.

      As for Section 2, it will become moot if states start decomissioning their marriage-banning amendments and instituting marriage equality, as doing so is likely to hand-in-hand with recognizing out-of-state same-sex marriages. It’s perhaps harder to strike down because while the Constitution’s full faith and credit clause might appear to require states to recognize each others’ marriages, the same article contains other language that gives Congress the power to determine the ‘effect’; and apparently they can decide it has no effect.

      This will be a state-by-state fight. We’ll probably get federal recognition with a striking of DOMA Section 3, but it will probably only apply to the marriage equality states; less clear what happens with civil unions/domestic partnerships. Since federal law doesn’t recognize them at all, they may get nothing. It will probably be up to Congress to act on extending recognition to include civil unions and domestic partnerships. That’s unlikely with the current makeup of Congress.

      Mar 29, 2013 at 5:29 pm · @ReplyReply to this comment ·

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