Let’s start with
United States v. Windsor, the challenge to the Defense of Marriage Act (DOMA), which may wind up as the less complicated of the two. (More background on the case can be found in my earlier posts
here,
here, and
here.) And let’s be clear on what this case is
not about: it is
not about whether there is a constitutional right to same-sex marriage. Instead, it is about whether Congress can treat married same-sex couples differently from married opposite-sex couples in federal laws and programs like Social Security benefits, immigration, and income taxes.
...
To the extent that you can make any predictions based on the oral argument, Windsor and her supporters may have reason to be cautiously optimistic. The Court’s four more liberal Justices – Justices Ginsburg, Breyer, Sotomayor, and Kagan – seemed to be squarely on her side. They may also have a vote from Justice Anthony Kennedy (who is often regarded as the swing vote on the Court) to strike down the law as well, although perhaps for a different reason. Generally a staunch supporter of states’ rights, he seemed troubled by the idea that with DOMA Congress was trying to regulate marriage – which, he seemed to indicate, has traditionally been the role of the states.
But there’s a chance that the Court might not even get to the question whether DOMA is constitutional at all. The case may have a fatal procedural flaw. In a normal case that comes to the Court, the party that lost in the lower court is the one asking the Court to review the case. But this is not, as you may have figured out by now, the average case. Windsor and the United States
won in the lower court, by getting a ruling that DOMA is unconstitutional. And to make things even more complicated, usually it is the federal government that appears in court to defend the constitutionality of federal laws, but the government isn’t doing that here; House Republicans are doing it instead.
