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U of M law professor says justices appear willing to strike down DOMA

"It appeared to me that there were five justices on the court today, including Justice [Anthony] Kennedy, prepared to strike down the Defense of Marriage Act and probably on federalism-based grounds."

Dale Carpenter, professor of civil rights and civil liberties law at the University of Minnesota law school, attended today’s U.S. Supreme Court hearing on arguments to overturn the federal Defense of Marriage Act (DOMA), which defines marriage as the union of one man and one woman. Carpenter, frequently consulted on issues of civil and constitutional rights, said that based on the arguments he heard today, he believes the high court will reject DOMA, but not on the merits of the right to gay marriage.

MinnPost: What are your conclusions following today’s arguments?

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Dale Carpenter

Dale Carpenter: I think there are two primary things to take away from today. First of all, it’s quite possible the justices will try to avoid the merits on this issue just as they tried to avoid the merits on the Prop. 8 case because of the complication that arises as the result of the Obama administration taking the position that the Defense of Marriage Act is unconstitutional but nevertheless still enforcing the act. 

There are some questions about whether Congress has standing to challenge on its own the president’s position, the question on whether the president can maintain any kind of action in the courts when, in fact, it isn’t even defending the constitutionality of the law. Those are very complicated questions. Several justices expressed the view today that this case may be inappropriate for decision on the merits. So that is one possibility.

The second, though, is potentially momentous news, and that is that it appeared to me that there were five justices on the court today, including Justice [Anthony] Kennedy, prepared to strike down the Defense of Marriage Act and probably on federalism-based grounds. 

Justice Kennedy was very strong in his concern about having the federal government intrude on the area of traditional state prerogative and the other justices, some of the more liberal justices, also agreed with that view. So if the court decides to rule on the substantive issue, I think there’s a fairly good chance, based on what they said in the oral argument, that they’ll strike down the Defense of Marriage Act on federalism grounds. 

MP: Wouldn’t same-sex marriage advocates prefer a ruling on the merits?

DC: It wouldn’t be a hollow victory at all because it would mean that the Defense of Marriage Act is unconstitutional and that Congress had no power to enact it and if that’s true, then same-sex couples would be entitled to all 1,100-plus federal benefits if they’re married in their home states. It’s a huge victory for the rights of same-sex couples who are married.

Now, could it be an even bigger victory if the court decided that sexual orientation is a subset classification, sure. And there were some justices that seemed somewhat sympathetic to that view. But simply the result of striking down the Defense of Marriage Act by itself would be monumental.

MP: What would be effect on what states are doing right now?

DC: I think it would make it more likely that they would [adopt same-sex marriage] because there wouldn’t be the complications that arise now because of a conflict between federal law and state law.

I think it could actually give momentum, significant momentum, to same-sex marriage advocates to have the Defense of Marriage Act struck down because then you have a whole lot more at stake in these determinations.

It means that more is at stake for same-sex couples in same-sex marriage debates legislatively. It means that not only do they have state level benefits at stake, they will have federal benefits, rights and privileges at stake — things like immigration and inheritance-tax treatment, and veterans’ benefits, and health benefits and just all kinds of things will be at stake for these couples. So it really intensifies the cause and the need for same-sex marriages if the court strikes down the Defense of Marriage Act.

MP: What was your interpretation of comments about the Obama administration’s failure to support DOMA?

DC: I think there was consternation that the Obama administration was taking a position that they would defend [enforce] an unconstitutional law without explaining why. The Obama administration has not been very forthcoming about that and that’s something many of the justices thought was problematic.

MP: Did any of the conservative justices indicate they too might be inclined to strike down DOMA on any grounds?

DC: Kennedy, I think, was very strong on the federalism concern today and to the extent that the oral argument tells you anything — he’s a moderate conservative — it tells you that he may be leaning in that direction. I think that’s what he did say. I didn’t get many hints from the other four conservatives, though, about what they would do.

I got plenty of suggestions that Justices [Antonin] Scalia, [Samuel] Alito and probably Chief Justice [John] Roberts would uphold it if it reached the merits. I say probably. Justice [Clarence] Thomas didn’t say anything in the oral argument, but that’s his practice. 

MP: Was there a comment that stood out?

DC: What we have is a very funny phrase used by Justice [Ruth Bader] Ginsberg today. She said that gay marriages are like skim milk marriages because they are not solely recognized. They don’t give you all the nutrition you need.

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