“Do you think they will punt on this one too?” That was the first thing I heard this morning in the Supreme Court pressroom. And though one can never be sure of anything after an oral argument, it looks to me like there will be no jurisdictional punt on the DOMA case. Unlike the Prop 8 case argued yesterday, United States v. Windsor seems headed for a ruling on the merits. If so, there will be a definitive decision by roughly the end of June on the constitutionality of the federal law barring recognition of same-sex marriages that are valid under state law.
And, since as we all know, the decision will ultimately rest with Justice Kennedy, the most important signals coming from the Court this morning were his comments, which suggested that he had too many misgivings to allow DOMA to survive. In response to the argument that DOMA helps states by not favoring same-sex marriage, Kennedy noted that Congress “is helping states [only] if they do what we [Congress] want them to do,” which, he noted, is not consistent with state law dominance on the rights of children as well as of spouses. (Justice Kennedy appeared quite troubled by the possibility that Congress has any authority to define marriage, traditionally a state function. He may be the only Justice, however, to question whether Congress lacks the power to define marriage solely for the purpose of federal benefits and other uniquely federal concerns.)
The four progressive Justices showed no hesitation in attacking the arguments offered for DOMA. “What kind of marriage is this,” Justice Ginsburg asked the lawyer defending DOMA when he asserted that DOMA permits some states to allow gay marriage. Justice Ginsburg later described DOMA as a law that creates “skim milk marriages.” Justice Kagan politely ridiculed the claim that Congress’s goals for passing DOMA were neutral, citing legislative history embracing the effort to legislate moral disapproval of gay couples. And the general thrust of Justice Sotomayor’s questions left no real doubt about her leanings.
Nor did there seem to be any doubt about the conservative Justices, including the Chief Justice, all of whose questions indicated support for DOMA. A number of observers had thought before the argument that Roberts might be movable because, in enacting DOMA, Congress deviated from a long-standing policy of accepting whatever definition of marriage had been adopted by the state where a particular couple resides. But there was no sign during the hearing that Roberts was perturbed by this departure from past practice.
Some Justices questioned whether the Court had jurisdiction of the case, though five votes for that conclusion seemed unlikely. The jurisdiction questions arose from the unusual posture of the Justice Department: it argued that DOMA is unconstitutional even though it also has the duty to defend the validity of all federal laws. To maintain both this substantive position and to ensure that appellate courts would have jurisdiction to review lower court opinions, DoJ (unlike what California officials did in the Prop 8 case) continued to participate in the litigation and to file appeals even when the lower courts found DOMA invalid.
Thus, DoJ was in the position of appealing decisions that it had “won” in the sense of agreeing with the lower court, even though it had also lost, in the sense that a federal law was being stricken. At least some Justices believe that the Administration can’t have it both ways (though DoJ has taken essentially the same steps in a handful of prior cases). Meanwhile, defending DoMA substantively was left to private attorneys retained by House Republicans, whose position more closely resembled that of an amicus than that of a party.
In the end, however, the Court has compelling institutional reasons to use the case before it now to resolve the merits about DOMA, rather than to delay that inevitable day of reckoning.