After yesterday's Supreme Court oral arguments on marriage rights and California's Prop 8, court watchers and those on hand for the proceedings seemed reluctant to predict the outcome. It's not just that speculation based solely on oral arguments is inherently risky, but also that real uncertainty hangs over the case.
That seems far less true 24 hours later. NBC's Pete Williams told viewers this afternoon, "Again with the caveat, it's always risky to predict, it does seem that there are at least five votes on the Supreme Court to strike down the Defense of Marriage Act." Jeffrey Toobin added, "DOMA is in trouble."
The New York Timesreport noted that Justice Kennedy "joined the four liberals in posing skeptical questions."
"The question is whether or not the federal government under a federalism system has the authority to regulate marriage," Justice Kennedy said during oral arguments, suggesting that the question should be left to the states. He disagreed with the contention that the federal law simply created a single definition for federal purposes, noting that same-sex couples are not treated the same as other married couples. "It's not really uniformity," he said.
Justice Kennedy's point echoed one made by his more liberal colleagues. Justice Ruth Bader Ginsburg said the federal law effectively created a two-tiered system of marriage. "There are two kinds of marriage," she said. "Full marriage and the skim-milk marriage."
Indeed, the center-left justices made no effort to hide their DOMA skepticism.
"You're treating married couples differently," said Sotomayor.
Kagan suggested that "Congress' judgment" when passing the law in 1996 "was infected with animus, with fear, with dislike."
Breyer said he "can't imagine" what the rational basis would be for denying benefits to married gay couples under federal law.
Ginsburg said recognition of marriage "affects every area of life," mentioning hospital visits to sick partners and Social Security retirement benefits as examples. "It's pervasive."
The only question remaining is whether Kennedy will join them, and by all accounts, he showed no sympathy for DOMA today.