After two days of highly anticipated courtroom arguments about same-sex marriage, a sweeping ruling on gay rights seems unlikely from the U.S. Supreme Court. But when decisions in both cases come in late June, the result may nonetheless be an important one for advocates of same-sex marriage.
Though it's risky to predict how the court will rule based solely on comments by the justices during the oral arguments, one outcome seemed probable -- a decision striking down the Defense of Marriage Act.
"A decision saying that DOMA is unconstitutional because it discriminates against people based on their sexual orientation, and requiring the federal government to give full recognition to the existing marriages of same-sex couples, would be a huge victory," said Paul Smith of the Washington, D.C., law firm of Jenner & Block.
He was in the courtroom when the justices took up the Proposition 8 case on March 26. Ten years earlier to the day, Smith stood before the justices to argue the case of Lawrence v. Texas, which invalidated state laws criminalizing homosexual conduct.
In the challenge to California's Prop 8 -- the state constitutional amendment enacted by voters in 2008 that limits marriage to one-man-one-woman couples -- the justices seemed to be searching for a way to avoid a decision. One possible outcome: declaring the case procedurally flawed and sending it back to California, where a lower court decision found Prop 8 unconstitutional. That would allow same-sex marriage to resume there without setting a precedent for other states.
During Wednesday's argument on DOMA, by contrast, at least four of the justices suggested that the law improperly discriminates against gay couples by blocking the federal government from recognizing same-sex marriages in the states that permit them.
Elena Kagan read from a House report that said Congress passed DOMA to express its "moral disapproval of homosexuality." Ruth Bader Ginsburg said the 1,100 federal benefits denied to same-sex couples water down their relationships to "skim-milk marriages."
Sonia Sotomayor asked if members of Congress could create any "class of people they don't like" and deny them benefits. Stephen Breyer asked what justification would permit treating gay marriages differently.
The fifth vote to strike down DOMA seemed likely to come from Anthony Kennedy, whose comments throughout the argument reflected a concern that Congress had no authority to define marriage, a power reserved to the states.
Former solicitor general Paul Clement, representing the House Republicans who came forward to defend DOMA, said the law was proper because it dealt only with the government's own definition of marriage in federal laws. For that reason, he said, the question of federal power was "not a DOMA problem."
Justice Kennedy disagreed. "I think it is a DOMA problem. The question is whether or not the federal government, under our federalism scheme, has the authority to regulate marriage," he said.
Kennedy said DOMA was "not consistent with the historic commitment of marriage, and of questions of the rights of children, to the states."
Even if Justice Kennedy's focus on the limits of federal power constrains the court's ruling in the DOMA case, avoiding a full-throated declaration that discrimination based on sexual orientation is unconstitutional, advocates of gay rights say it would still send a powerful message.
"I think it's enormous," said Mary Bonauto of GLAD, a pioneer in gay rights litigation, of the possibility that DOMA would be struck down.
"This is a law that has the effect of discriminating only against married same-sex couples. And anytime you eliminate a double standard based on sexual orientation, it matters," she said.
And Paul Smith of Jenner & Block says such a decision could lay the groundwork for future legal challenges to state laws that forbid same-sex couples to marry.
"While it's not the same thing as requiring states to let people get married, it will push the momentum forward," he said, and could have an effect on lawsuits now pending that challenge bans on same-sex marriage in Hawaii, Illinois, Nevada, New Jersey, New Mexico and Oklahoma.