Is DOMA dead?

By Michael J.W. Stickings

Here's Lyle Denniston of SCOTUSblog, in line with most of the initial commentary after today's oral argument:

If the Supreme Court can find its way through a dense procedural thicket, and confront the constitutionality of the federal law that defined marriage as limited to a man and a woman, that law may be gone, after a seventeen-year existence. That was the overriding impression after just under two hours of argument Wednesday on the fate of the Defense of Marriage Act.

That would happen, it appeared, primarily because Justice Anthony M. Kennedy seemed persuaded that the federal law intruded too deeply into the power of the states to regulate marriage, and that the federal definition cannot prevail. The only barrier to such a ruling, it appeared, was the chance – an outside one, though – that the Court majority might conclude that there is no live case before it at this point.

This would be very good news. DOMA is legislated bigotry that deserves to die.

But let's be clear about a couple of things:

1) Four justices will more than likely vote to uphold DOMA's constitutionality, which is to say, to uphold bigotry. (Chief Justice Roberts may not quite get this, for whatever reason, but the point of DOMA from the very start has been to enshrine anti-gay bigotry in federal marriage law.) So with four radical conservatives on the court, even if Roberts is somewhat more pragmatic than Scalia, Alito, and Thomas, it all comes down the not-so-radical conservative Kennedy to decide the fate of this abhorrent law. But at least he appears to be siding with the anti-bigots on the court.

2) The court may kill DOMA not because it violates the principle of equal rights but because of states' rights, which is a decidedly conservative position to take (a reminder that the "conservatives" on the court are actually more radical than conservative). Which is to say, Kennedy's argument may turn out to be that it is the states that should be free to legislate anti-gay bigotry, not the federal government.

But, then, this may be the best we can expect from the Roberts Court, a fundamentally conservative ruling that ultimate serves a progressive cause.