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Evening round-up: DOMA argument

The Court heard arguments today in United States v. Windsor, Edith Windsor’s challenge to the constitutionality of the federal Defense of Marriage Act.  A PDF of the transcript is available here, and audio is online here.

Disclosure: Kevin Russell of the law firm Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, was among the counsel on an amicus brief filed by former senators in support of Edith Windsor in this case.

Outside the Court this morning, Joseph Ax estimated for Reuters that approximately one thousand same-sex marriage supporters had gathered.  Inside the courtroom, arguments began with debate over whether the issue is properly before the Court at all, with court-appointed lawyer Vicki Jackson defending the position that the Justices ought to “await another case another day” to decide DOMA’s constitutionality (via The Wall Street Journal).  Ensuing questions and comments by Justices Alito and Scalia, blogs Evan Perez for The Wall Street Journal, suggest that “they didn’t buy her arguments that neither the House members who defend DOMA nor the executive branch have an interest in the case.”

Other coverage of the oral argument focused on the Court’s apparent frustration with the executive branch.  Writing for Business Insider, Brett LoGiurato reports on the Chief Justice’s suggestion that the Obama administration’s refusal to defend DOMA while still enforcing the law is “unprecedented.”  Justice Kennedy voiced his own concerns on the administration’s decision, reports Nicole Flatow for Think Progress, calling it “very troubling.”

Federalism also attracted attention, as Court watchers parsed Justice Kennedy’s evident concern for marriage as a matter traditionally regulated by the states.  Jeffrey Toobin predicts that Justice Kennedy’s discomfort puts DOMA “in trouble,” while Justices Sotomayor and Kagan “echoed” Justice Kennedy’s concerns, report Lawrence Hurley and David Ingram for Reuters.  At this blog, Amy explains in “plain English” why DOMA presents a states’ rights problem.  And Politico’s Jennifer Epstein and Josh Gerstein cover what they characterize as Justice Kagan’s “gotcha moment,” in which she referred to a House Report discussing “moral disapproval” of gays and lesbians as “a pretty good red flag” when it comes to discrimination.  “[F]ederalism and equal protection worked in tandem, with one bolstering the other,” concludes Dale Carpenter for The Volokh Conspiracy.

With the oral argument now over, predictions about the outcome of the case have followed.  For this blog, Tom Goldstein estimates that the odds that DOMA will be struck down are roughly eighty percent, while Nancy Pelosi is “optimistic” for that outcome, according to The Wall Street Journal’s Siobhan Hughes.  Overall, commentators expressed skepticism that DOMA will last much longer.  Edward Adams reports on Bloomberg Law’s live blog: “Most major news organizations are taking the same approach in their early full-argument stories — DOMA is likely to be toast.”  Reports for those major outlets include: Robert Barnes and Sandhya Somashekhar writing for The Washington Post; Adam Liptak and Peter Baker for The New York Times; Lawrence Hurley and David Ingram for Reuters; Tom Curry for NBC News; Bill Mears and Tom Cohen for CNN; and Fox News.  (hat tip: Bloomberg)  Also weighing in: Richard Wolf and Kevin Johnson for USA Today, writing that a “slim majority” of Justices “may be willing to overturn” DOMA; David G. Savage and David Lauter for The Los Angeles Times; Greg Stohr for Bloomberg; and Mark Memmott for NPR, accompanied by Nina Totenberg via audio clip sidebars.

The blogosphere also predicted an uphill battle for DOMA.  At this blog, Lyle offers his early take and Tom spells out the relationship between DOMA and Prop 8.  Emily Bazelon covers the day for Slate, including Justice Ginsburg’s “skim-milk marriage” quip.  BuzzFeed’s Chris Geidner writes: “A majority of Supreme Court justices Wednesday appeared ready to declare unconstitutional the Defense of Marriage Act’s definition of marriage for federal purposes as limited to one man and one woman.”  Marcia Coyle offers her takeaway at The Blog of Legal Times: the Court is divided on both the jurisdictional question as well as the merits, which she believes the Court will reach in Windsor.  (hat tip: Zoe Tillman)  Provided the Court does reach the merits, The Constitutional Accountability Center’s David Gans “expect[s] the court to strike down DOMA” as does Ilya Shapiro, writing for Cato at Liberty.  But also writing for The Blog of Legal Times, Tony Mauro concludes that today’s arguments “revealed a court that, like the day before, wanted to proceed cautiously on such a hot-button issue.”  (hat tip: Howard Bashman)  More sweepingly, Camilla Taylor asserts via Lambda Legal’s Twitter feed that “[t]oday spells doomsday” for DOMA.

Lastly, both Edith Windsor and her lawyer, Roberta Kaplan, shared their optimism at the course of the day’s arguments, with Lucas Grindley quoting Windsor in The Advocate: “I felt very respected, and I think it’s gonna be good.”

Recommended Citation: Allison Trzop, Evening round-up: DOMA argument, SCOTUSblog (Mar. 27, 2013, 6:57 PM),