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If Tuesday’s action at the Supreme Court pointed to a Court looking for a procedural escape hatch from a case that appeared to have given several of the justices a severe case of buyer’s remorse, Wednesday’s oral argument in United States v. Windsor strongly suggested that at least five justices were looking to confront squarely questions of federalism and equal protection rights of same-sex couples. It is still possible that, as in the California Proposition 8 case (Hollingsworth v. Perry), the Court might pass on the substantive questions and instead dismiss based on the argument that the petitioners lack standing to sue, meaning that they have not suffered sufficiently direct harm to justify allowing them to bring their case. But there’s a crucial difference between the two cases. If the petitioners in Hollingsworth, backers of Proposition 8, are deemed to lack standing, then the Ninth Circuit’s ruling would be vacated, and the district court’s ruling in favor of the same-sex couples challenging Proposition 8 would remain. Such a ruling would have no impact outside California, however. In contrast, denying standing to the Obama administration and the House Republican leaders currently litigating on behalf of the Defense of Marriage Act (DOMA) would leave in place the Second Circuit’s ruling in favor of Edith Windsor. This would mean that DOMA would be invalid in states within the Second Circuit (New York, Connecticut, and Vermont), but valid everywhere else, thereby compelling the federal government to maintain two separate regimes governing federal benefits accruing to married couples. So while I wouldn’t be surprised to see the Court punt the Hollingsworth case, I’d be very surprised to see it act similarly in Windsor.

The emerging consensus, based on today’s proceedings, seems to be that DOMA is in jeopardy of being invalidated on federalism grounds. That is, DOMA represents federal intrusion into a policy domain, marriage, that falls within the sphere of state authority. Such an argument would appeal to Justice Kennedy, as someone who has written repeatedly in defense of a strong state role within a federalist system, and it might appeal to one of the conservatives who has not displayed overt hostility to LGBT individuals in his questioning.  But Kennedy is also the author of the majority opinion in Lawrence v. Texas, in which the Court invalidated state anti-sodomy laws, and it is possible that one of the liberal justices could persuade him that his eloquent language in that opinion in favor of sexual autonomy and human dignity compels a broader ruling in favor of marriage equality. (ironically, it was Scalia whose dissent in Lawrence predicted that the inevitable consequence of invalidating anti-sodomy laws would be recognition of same-sex marriage.) So we’ve got four justices (Breyer, Ginsburg, Kagan, and Sotomayor) who appear willing to strike down DOMA on equal protection grounds; the question, as is so often the case, is what Kennedy will do.

The dilemma for Kennedy stems from the fact that the two legal grounds for invalidating DOMA are mutually exclusive. If you believe that marriage is a fundamental right, and that denying this right to same-sex couples represents an equal protection violation, then you can’t then decide that states should remained empowered to determine who may exercise that right. Conversely, if your objection to DOMA lies in its intrusion on state prerogatives, then you have to accept the possibility that states will decline to extend marriage equality to same-sex couples. The Obama administration has tried very hard to finesse this tension at the heart of the same-sex marriage cases this term, but its proposed solution–require states with civil unions to extend marriage rights to same-sex couples, while requiring nothing of states with constitutional or statutory bans on gay marriage–required little support from conservatives or liberals on the Court. So how the Court resolves these disputes will hinge on whether Kennedy values his federalism more than he values his Lawrence opinion. My hunch (for recreational purposes only) is that he does not, for the same reason that he subordinated state autonomy concerns when writing Lawrence itself.


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