Maybe Scalia was wrong

posted on Fri, Apr 19 2013 5:29 pm by James Taranto, The Wall Street Journal

The most telling question in two days of oral arguments on same-sex marriage came yesterday in U.S. v. Windsor, the Defense of Marriage Act case. The questioner, not surprisingly, was Justice Anthony Kennedy, who addressed Solicitor General Donald Verrilli:

You are insisting that we get to a very fundamental question about equal protection, but we don't do that unless we assume the law is valid otherwise to begin with. And we are asking is it valid otherwise. What is the Federal interest in enacting this statute and is it a valid Federal interest assuming, before we get to the equal protection analysis?

Let's uproot some of the legal weeds so we have a clear view:

The justices are debating whether Section 3 of DOMA, the provision barring the federal government from recognizing any same-sex marriages is unconstitutional. (Section 2, which permits states to refrain from recognizing other states' same-sex marriage, is not under challenge.)

There are two arguments against Section 3: the federalism argument and the equal-protection argument. The federalism argument is that marriage and family law have traditionally been state domains, and therefore Congress lacks authority to legislate in these areas. The equal-protection argument is that DOMA unconstitutionally discriminates against homosexuals.

Kennedy seems to be giving serious consideration to striking down DOMA's Section 3 based on the federalism argument alone. In this column's view, that would be the correct outcome, which is to say that we respectfully dissent from The Wall Street Journal's editorial position.

Kennedy's evident reluctance to take up the equal-protection argument in Windsor is almost certainly a clue as to his thinking about Hollingsworth v. Perry, the case challenging California's Proposition 8.

In Hollingsworth, observers on either side could find reason for encouragement in Kennedy's questioning at oral argument. On the one hand, as we noted Tuesday, he expressed serious misgivings about the court's imposing a novel social policy on the nation. On the other, he mused about "the voice of these children"--which, as blogress Ann Althouse notes, is a slogan from the Family Equality Council, a gay-rights group that filed a friend-of-the-court brief urging the court to strike down both Proposition 8 and DOMA.

Read more via The Wall Street Journal