US: Supreme Court indicates it may strike down the Defense of Marriage Act

Illustrated rainbow pride flag on a white background.

The US Supreme Court Justices on Wednesday indicated a possible interest in striking down the Defense of Marriage Act (DOMA), as it heard arguments around the issue.

Several of the Supreme Court Justices raised concerns around DOMA, and some took that as a sign that there may be a narrow majority who will strike it down.

Justice Anthony Kennedy, widely regarded as the swing vote between justices on the liberal and more conservative side of the court warned of the “risks” that DOMA hindered the traditional role of the states in defining marriage.

Another of the Supreme Court Justices, Ruth Bader Ginsburg emphasised the importance of federal recognition of legal marriages. She said: “It affects every area of life”.

This was the second day of hearings, as yesterday the court heard arguments around Proposition 8, the state of California’s ban on equal marriage. Then the justices questioned the meaning of marriage, and challenged arguments for the ban. 

Conservatives criticised the White House’s 2011 decision not to defend DOMA. “It’s very troubling,” Justice Kennedy said, questioning Obama’s willingness to defend other laws passed by Congress, yet which might be challenged in court.

Obama, and attorney general Eric Holder, said in February 2011 that they would cease to defend DOMA, which they deemed unconstitutional.

Today’s criticisms, however, may not be a reflection of how the court eventually rules on the 1996 law, and their decision on whether it goes against the US Constitution.

In the place of the US Justice Department, some Republican lawmakers defended DOMA, arguing for it.

Pressing government lawyer Sri Srinivasan, Chief Justice John Roberts asked how the government would decide which laws to defend in future, asking “what is your test?”.

Srinivasan replied that there was no “black or white” test, and said that on deciding whether or not to defend DOMA, the final decision was down to Obama.

A decision by the Supreme Court in both cases is expected by the end of June.

Several polls released recently have found that support for equal marriage in the US has shifted greatly, and is an at all time high. 

Two Democratic Senators came out in support of same-sex marriage ahead of the Supreme Court’s hearings on the subject.

Missouri Democratic Senator Claire McCaskill already came out in support for marriage equality earlier on Monday, via a Tumblr post.

Aside from the Democrats to have come out as pro-equality, Republican Senator Rob Portman announced that he  endorsed same-sex marriage on 15 March.

The former US Secretary of State Hillary Clinton, officially announced her support for equal marriage in a moving speech last week in which she called moves towards equality “breathtaking and inspiring”.