Here is the audio of today’s Supreme Court arguments over the federal Defense of Marriage Act.
The statute, which restricts benefits to people in opposite-sex marriages, is “in trouble,” according to Lyle Denniston at SCOTUSblog.
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. 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.