ANALYST: 80 Percent Chance The Supreme Court Strikes Down The Defense Of Marriage Act
CNN legal analyst Jeffrey Toobin said on air that the law was "in trouble," and NBC's Pete Williams said he thought the court had the five votes it needed to strike down the law.
All three cited the statements of swing Justice Anthony Kennedy, who suggested it was a violation of states' rights. SCOTUSblog also reported that four other justices — likely liberals Elena Kagan, Sonia Sotomayor, Stephen Breyer, and Ruth Bader Ginsburg — see the law as a violation of gay rights.
The Defense of Marriage Act, which was signed into law by President Bill Clinton in 1996, only allows federal benefits to go to married heterosexual couples. Its definition of marriage as between a man and a woman affects more than 1,000 federal laws and programs.
The Wall Street Journal has more on Kennedy's skepticism:
"Justice Kennedy ... jumped in with federalism concerns, questioning whether the federal government was intruding on the states' territory. With there being so many different federal laws, the federal government is intertwined with citizens' day-to-day lives, he said. Because of this, DOMA runs the risk of running into conflict with the states' role in defining marriage, he said."
He also told Paul Clement, the lawyer defending the DOMA, that he saw "illogic" in his argument.
Ginsburg, meanwhile, said same-sex marriages were like "skim-milk" marriages under the law, and Sotomayor asked what gave the federal government the " right to be concerned at all about the definition of marriage," according to reports from inside the court.
SCOTUSblog said that its 80 percent prediction was not 100 percent solely because Kennedy wasn't completely decisive.
Rulings in both the DOMA case and on California's Proposition 8 — on which the court held arguments Tuesday — are expected by the end of June.
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