DOMA is in Trouble

The U.S. Supreme Court heard oral arguments on the DOMA, the Defense of Marriage Act, today. Based on Justice Anthony M. Kennedy’s questions and statements to attorney Paul Clement who is representing House Republican Leadership in defense of DOMA it doesn’t look good.  Justice Kennedy is seen as the swing vote and he appears troubled by DOMA’s interaction with states’ right to regulate marriage.

Well, it applies to over what, 1,100 Federal laws, I think we are saying. So it’s not — it’s — it’s — I think there is quite a bit to your argument that if the tax deduction case, which is specific, whether or not if Congress has the power it can exercise it for the reason that it wants, that it likes some marriage it does like, I suppose it can do that.

But when it has 1,100 laws, which in our society means that the Federal Government is intertwined with the citizens’ day-to-day life, you are at — at real risk of running in conflict with what has always been thought to be the essence of the State police power, which is to regulate marriage, divorce, custody.

To quote an attorney friend of mine, Gabe Haugland, who emailed me today, “Great. So states can regulate marriage.  Iowa did, with it’s own version of DOMA.  Which the Iowa Supreme Court threw out.  At the end of the day, Iowa’s ‘traditional authority to regulate marriage’ which the Supreme Court recognized in oral argument today, has been usurped by 9 justices.”

Indeed it has.  What’s frustrating is how the Supreme Court will recognize federalism in this case and then ignore when it comes to ObamaCare and a whole slew of federal regulations.  Can we get some consistency here?

Anyway.  I believe DOMA is in trouble and it will likely be stricken on a 5-4 vote.  What does that mean in terms of recognizing same-sex marriages that occur in Iowa when the couple moves to say Georgia, I’m not certain.  The key benefit to DOMA was to protect states from having to recognize marriages deemed illegal by their state code or state constitution.  Ironically, Justice Kennedy’s argument may mean that another state, rather than the Federal government, may be able to interfere with a state’s right to regulate marriage.

This is also worth mentioning…. if the Supreme Court strikes down DOMA on the basis of federalism one would think they would have to uphold Proposition 8 on those same grounds.  That would make sense, but I’m not going to hold my breath on that one.

Photo Credit: Stephanie (steffofsd) via Flickr (CC-By-NC-ND 2.0)