CNN senior legal analyst Jeffrey Toobin
says he's pretty certain the U.S. Supreme Court will strike down the
Defense of Marriage Act (DOMA) and disagrees on calling the Obama
administration incremental on the issue of gay marriage.
Appearing on NPR's Fresh Air,
Toobin told host Terry Gross that he believes the administration, led
by President Barack Obama, is advocating for “a full-scale change
in all 50 states about same-sex marriage.”
“[T]he Obama administration has
changed so dramatically over the course of its, you know, four and a
half years in office about same-sex marriage, led by the president,
that I don't actually think the Obama administration is all that
incremental,” Toobin
said. “They are basically advocating a full-scale change in
all 50 states about same-sex marriage. The solicitor general, Donald
Verrilli, has filed a brief saying that the Defense of Marriage Act
is unconstitutional, that that law, which forbids the federal
government from recognizing same-sex marriages, even in states where
it's legal, he's saying that's just purely a form of discrimination
that the Constitution cannot justify. But I think even more
remarkable is the brief that the government filed in the Proposition
8 case, where it said, it only addressed California's law,
Proposition 8. But it made very clear that the United States
government – at least this solicitor general, this United States
government – believes that gay people cannot be denied the right to
get married. And even though they only address the California law,
it's inconceivable to me that it doesn't apply in all 50 states. So
I think the Obama administration is likely to be ahead of even the
liberals on the Supreme Court.”
Toobin predicted that the court would
strike down DOMA with a solid majority. But he was less certain
about Proposition 8.
“[T]he Proposition 8 case is much
more of a Rubik's cube of possibilities, where they could just limit
the decision to California. There are various procedural issues in
the case that could allow them to sort of duck the hard issues. I'm
a lot less confident even in my dismal record of predictions in the
Proposition 8 case.”