Gaytterdämmerung Day 2: DOMA Almost Dust

Looks like Day 2 of Gaytterdämmerung went better than Day 1 for the supporters of LGBT equality. Apparently things are not looking good for the so-called Defense of Marriage Act, because even Justice Kennedy was skeptical that the government has a rational basis for enacting and enforcing the law.

Final update: #scotus 80% likely to strike down #doma. J Kennedy suggests it violates states’ rights; 4 other Justices see as gay rights.
— SCOTUSblog (@SCOTUSblog) March 27, 2013

Lyle Denniston of the Peabody award-winning website SCOTUSblog says:

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.

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.

It would still be a great win to strike down the odious DOMA and allow legally married couples to have access to federal marriage benefits and responsibilities, but if we don't get clarity from a majority of justices on the "level of scrutiny" question than the underlying issues of equal citizenship for LGBT people in this country will not have been resolved. (Heck, even if the Court were to say that sexual orientation is a suspect class, that would still have to be operationalized on a practical level and would take years topositively impact the everyday lives of LGBT Americans.


Hat/tip to Joe.My.God