After the oral arguments in U.S. v. Windsor (better known as the DOMA case) today, it’s becoming obvious that the desire of the political community for a clear “pro-” or “anti-” marriage equality stance in that case and in Hollingsworth v. Perry (the Prop 8 case heard yesterday) is likely to be frustrated by the Supremes–and not just because Anthony Kennedy is an unpredictable “swing vote.”
As SCOTUSblog’s Tom Goldstein explains, the position of federal and state governments in the two cases are directly in opposition:
Students of Windsor and Hollingsworth have always recognized a basic tension between the theories of gay-rights advocates in the cases. The challenge to DOMA is undergirded by a sense that marriage is a matter for state rather than federal regulation. The challenge to Proposition 8 is a direct challenge to just such a decision by a state.
Yesterday and today, the irresolvable depth of that tension in this Court became obvious.
So marriage equality advocates, who appear likely to score a clean knockout of DOMA in Windsor, are by the same token only likely to win a TKO over Prop 8, via a decision not to interfere with lower court findings invalidating the initiative.
You get the feeling (as Goldstein suggests) that the optimism in some quarters that Hollingsworth might yield a landmark LGBT rights decision was based on a hunch that Kennedy craves the kind of immortality Harry Blackmun won with Roe v. Wade. I’m more concerned personally that Kennedy will have his “historic moment” a year or two from now by helping overturn Roe. But in any event, the logic of the cases and the composition of the Court make a “clean sweep” for marriage equality unlikely.