The U.S. Supreme Court appears more likely to overturn part of the Defense of Marriage Act after oral arguments in a case challenging the law's constitutionality.
The Court is "80% likely to strike down" DOMA because Justice Anthony Kennedy, who is expected to be the swing vote in the case, "suggests it violated states' rights," Scotusblog tweeted after Wednesday's oral arguments.
CNN legal analyst Jeffrey Toobin agreed.
"I think DOMA's in trouble," Toobin said, "and I think it's in trouble because Anthony Kennedy was repeatedly concerned that the Defense of Marriage Act violates states' rights."
In the case, United States vs. Windsor, Edith Windsor sued the federal government, claiming that DOMA violated her constitutional guarantee to equal protection under the law. Windsor married her same-sex partner, Thea Spyer, in Canada. When Spyer passed away, she left her estate to Windsor, who then had to pay $363,000 in federal estate taxes. She would not have had to pay those taxes if the federal government recognized her marriage.
The court is deeply divided on the issue of same-sex marriage. The four liberals, Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor, appear to see view the issue as one of gay rights while the four conservatives, Justices Samuel Alito, Antonin Scalia, Clarence Thomas and Chief Justice John Roberts, are assumed to be skeptical of the view that a right to same-sex marriage can be found in the Constitution.
Kennedy seems to be the most conflicted. He has written opinions favorable to gays in the past, but has also strongly supported states' rights and federalism. On Tuesday, the justices heard arguments in another gay marriage case. In those arguments, Kennedy seemed reluctant for the court to even make a decision in the case on Proposition 8.
In Wednesday's arguments, though, Kennedy appeared to support the view that the part of the Defense of Marriage Act that defines marriage as the union of one man and one woman for the purposes of federal is a violation of states' rights. That argument goes like this: while there are about 1,000 federal laws that take marriage into account, marriage licenses are issued by states, not the federal government, so it should be left to the states to decide who is or is not married.
The defenders of DOMA argue that it is the purview of Congress and the president to define what marriage is for federal law and no right to same-sex marriage can be found in the Constitution.
There are a number of procedural issues that the case could be decided upon as well. DOMA is not being defended by the president (via the attorney general's office), as would customarily be the case. Instead, DOMA is defended by the Bipartisan Legal Advisory Group, which was appointed by the House of Representatives. A large portion of the oral arguments were spent addressing the question of whether the court should even be hearing the case, given that Windsor is suing the government to obtain money that the government agrees she should have.
DOMA, signed into law by President Bill Clinton in 1996, defines marriage as a legal union between one man and one woman.