US: San Francisco law professors predict Supreme Court will invalidate Prop 8 and DOMA

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Two law professors from San Francisco’s Bay Area predicted after two days of hearings around equal marriage, that the Supreme Court would rule to invalidate both Proposition 8 and a the Defense of Marriage Act.

Santa Clara University professor Margaret Russell and University of San Francisco professor Julie Nice both said they expected the rulings to be narrow, limited or splintered, but that they expected both Prop 8 and a key section of DOMA would be invalidated.

The pair predicted a 5-4 or a 6-3 ruling in favour of invalidating the two laws.

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.

This was the second day of hearings, as Tuesday 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. 

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

“We are not likely to get a direct ruling on the merits,” Russell said. She continued to say that it was “very likely” that Proposition 8 would be invalidated, albeit the majority may be narrow, and that it would be “very meaningful” if DOMA were to be invalidated.

Nice continued, saying: “We’re not going to have that ringing majority ruling that gets to the crux of this case, which is discrimination based on sexual orientation.”

The pair predicted that Justice Anthony Kennedy would be the fifth vote in favour of invalidating the laws.

On Wednesday, Justice 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.

Before the hearings began, the head of a well-known law firm and top attorney said that he expected the US Supreme Court to resoundingly support equal marriage, and strike down the laws 7-2.