The Supreme Court argument on the constitutionality of the Defense of Marriage Act was rather predictable. So-called liberal justices can’t get their minds around recognizing heterosexual marriage as deserving of special status. At the other end of the spectrum, Justice Antonin Scalia can’t fathom anyone questioning a couple thousand years of social convention. And then there is, as always, Justice Anthony Kennedy, who is cautious but a firm believer in the 10th Amendment.

Supreme Court-J. Scott Applewhite/A.P.

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.

As to the latter part, I see a very real chance that the court may not make it to the merits. The justices were at times quite peeved with the administration for simultaneously refusing to defend a law and contending there is a dispute so that the Supreme Court can properly decide the matter. Here the administration is trying to have its cake (side with pro-gay marriage advocates) and get the court to declare gay marriage protected by the 14th Amendment.

Normally, a party cannot do this because courts must decide actual “cases and controversies.” In legal parlance, that doesn’t mean societal controversies but disputes between two sides in a case. What you have here is a sort of collusion between the feds and the parties challenging the federal law. Every justice who asked questions was to one degree or another hung up on this point, and each was skeptical of the notion the House could step in to defend the law. This is no small matter; unless the justices can get over this hurdle there will be no decision on the merits.

As to the merits, if we assume Justice Kennedy was not indulging in quite a theatrical display, he was deeply worried about the some 1,100 federal laws in which DOMA could override a state same sex marriage law. That, he said, comes perilously close to an exercise of generalized police power which Congress doesn’t have. This suggests DOMA could fall on 10th Amendment grounds, as we have argued it should.

As to the 14th Amendment, again unless one or more justices decided to play possum, there are not five votes to find gay marriage protected by the equal protection clause. It is a reminder that elected branches of government are much more responsive than the courts to swift changes in public opinion and tend to respect political judgments when prompted to take the law in new and controversial directions. It was interesting that even Justice Sotomayor was troubled by the 14th Amendment argument because it would force all states to recognize gay marriage; that would be a huge social revolution imposed by judicial fiat.

If DOMA falls on 10th Amendment grounds it would be a fitting rebuke to those who sought to federalize marriage. Conservatives are supposed to respect the role of states and accommodate the citizenry’s views and habits as they evolve over time. One can understand the impatience of gay marriage advocates but requiring them to persuade their fellow citizens of the justness of their position seems neither daunting (if you follow public polling) nor inconsistent with democracy.

And if the court can’t get past the absence of a real dispute between these parties as to DOMA’s constitutionality it will be, in the eyes of  gay rights supporters, a monumental flub by the Obama legal team.