The Supreme Court on Wednesday signaled
that it would likely strike down the Defense of Marriage Act (DOMA),
the 1996 law which prevents federal agencies from recognizing the
legal marriages of gay and lesbian couples.
After oral arguments in the case
challenging the constitutionality of the law, NBC News correspondent
Pete Williams reported that there seemed to be five justices leaning
against the law.
Influential court watcher SCOTUSblog
tweeted: “#scotus 80% likely to strike down #doma. J Kennedy
suggests it violates state's' rights; 4 other Justices see as gay
“It's very troubling,” said Justice
Anthony Kennedy, considered a swing vote.
“The question is whether the federal
government … has the authority to regulate marriage,” Kennedy
said during the nearly 2-hour hearing. “That authority undermines
the states' role in the federal system.”
Justice Ruth Bader Ginsburg said DOMA
creates two kinds of marriage: “Full marriage” and “skim milk
States v. Windsor, Edith Windsor sued the federal
government after she received an estate bill of more than $360,000
resulting from the death of her wife Thea Spyer. The women shared
their lives for 44 years and married in Toronto, Canada in 2007. In
2009, New York began recognizing the marriages of gay couples,
although gay couples could not enter such unions in the Empire State
until 2011. Spyer died in 2009.
Appearing outside of the court, Windsor
thanked her supporters and became emotional when asked about a broach
she was wearing, which was given to her by her late wife.
After the Department of Justice
announced it would no longer defend the law in court, House Speaker
John Boehner, a Republican from Ohio, directed the so-called
Bipartisan Legal Advisory Group (BLAG) to step in. BLAG hired former
Solicitor General Paul Clement to argue more than a dozen cases
challenging the constitutionality of DOMA.
Clement argued before the justices that
the law made only a “narrow” technical point, defining marriage
for the purposes of the federal government.
Justice Elena Kagan quoted from a House
report which accompanied passage of the law that stated that Congress
was approving the law to express “moral disapproval of
“If that's enough to invalidate the
statute, you should invalidate the statute,” Clement said.