Of course, the liberal justices on the Court showed interest in importing just such Equal Protection issues, which could call for the more robust constitutional protections afforded against racial and gender discrimination and thus open the door to a wider ruling on gay marriage.
Here’s Justice Breyer hinting at that sort of thinking in response to Clement’s argument:
The Kennedy Factor, Again
You would say it would be the same thing if the state passed a law — Congress passes a law which says, well, there’s some states — they all used to require 18 as the age of consent. Now, a lot of them have gone to 17. So if you’re 17 when you get married, then no tax deduction, no medical, no nothing. Or some states had a residence requirement of a year, some have six months, some have four months. So Congress passes a law that says, well, unless you’re there for a year, no medical deduction, no tax thing, no benefits of any kind, that that would be perfectly constitutional. It wouldn’t be arbitrary, it wouldn’t be random, it wouldn’t be capricious? . . .
Congress just passes a law which takes about, let’s say, 30 percent of the people who are married in the United States and says no tax deduction, no this, no that, no medical — medical benefits, none [of] these good things, none of them for about 20, 30 percent of all of the married people. Can they do that?
So where does the Swing Voter in Chief, Justice Anthony Kennedy, come down on the issues? Well, it sure sounds like bad news for Clement and DOMA defenders. On the one hand, Kennedy seemed somewhat persuaded by Clement’s argument that the House has the standing to defend DOMA. Good, right? Nope, because on the merits, Kennedy seemed ambivalent at best on Clement’s argument that defining marriage for the purpose of federal law helps, or at least does no harm to, states that include gay unions in their own definitions of marriage.
Was DOMA homophobic in intent?
If the case is going to be decided on Equal Protection grounds, it’s going to be so decided in large part because the Court buys that the point of DOMA was discriminatory, and not just to clarify the meaning of a word in a bunch of statutes. Justice Kagan implied that she thinks the intent of DOMA was animus toward gays, and that is what Obama’s solicitor general, Donald Verrilli, explicitly argued:
This statute is not called the Federal Uniform Marriage Benefits Act; it’s called the Defense of Marriage Act. And the reason for that is because the statute is not directed at uniformity in the administration of federal benefits. . . . And the fundamental reality of it is . . . that DOMA was not enacted for any purpose of uniformity, administration, caution, pausing, any of that. It was enacted to exclude same-sex married, lawfully married couples from federal benefit regimes based on a conclusion that was driven by moral disapproval.
Of course, this would appear to put Verrilli and the Obama administration in the awkward position of implying that, e.g., 84 United States senators and President Bill Clinton were homophobes, as Chief Justice Roberts pointed out.
Roberts later implied a skepticism that gays should in any event be treated as an oppressed class, on the grounds that the very change in public opinion toward same-sex marriage that opponents of DOMA rely on is itself the product of the “political effectiveness” of pro-same-sex-marriage groups. In the end, whether the Court finds heightened Equal Protection status for gays — and thus a basis for putting DOMA through the wringer — could, ironically, depend on whether five justices think the same-sex marriage movement has been too successful to warrant it.
— Daniel Foster is NRO’s news editor.