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Votes May Be There To Strike Down DOMA, But There's A Big 'If'

Demonstrators gathered again outside the Supreme Court Wednesday as the time approached for another case to be heard about issues related to same-sex marriage.
Chip Somodevilla
Getty Images
Demonstrators gathered again outside the Supreme Court Wednesday as the time approached for another case to be heard about issues related to same-sex marriage.

(We most recently updated the top of this post at 1:45 p.m. ET.)

There seem to be four solid votes on the Supreme Court — and possibly a fifth — to strike down the Defense of Marriage Act that bars federal recognition of same-sex marriages, NPR's Nina Totenberg told us after Wednesday's oral arguments before the nine justices.

But there's a big "if."

As in: There's possibly a 5-vote majority to strike down the law if the court first decides it should even issue an opinion.

NPR's Nina Totenberg: If the court strikes down DOMA, what would be the grounds?
NPR's Nina Totenberg: An interesting exchange about the 'power' of DOMA opponents.
NPR's Nina Totenberg: On what happens if the court declines to decide.

Judging from what was said by the justices during the second day of historic hearings on issues related to gay marriages, Nina said, it isn't clear that a majority will conclude they should rule on the merits of the law.

That's because the Obama administration has decided not to defend the law's constitutionality. The only entity to come to the law's defense has been the Republican leadership in the House. A majority of the justices, Nina said, seemed doubtful about "whether that's enough [of a defense] for there to even be a decision." The case, she said, lacks "the traditional type of conflict" that comes before the court.

According to Nina, it seemed clear that the court's four "liberal" justices — Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan — would vote to strike down DOMA. It's also likely that the four "conservatives" — Chief Justice John Roberts and Antonin Scalia, Clarence Thomas and Samuel Alito — would vote to uphold the law. The "swing" vote, Anthony Kennedy, appeared to lean toward striking down the law, Nina told us. Among Kennedy's concerns: that the act infringes on states' rights to define marriage and affects the daily lives of gay couples because it touches hundreds of federal laws.

Note at 1:45 p.m. ET: SCOTUSblog's latest headline echoes Nina's analysis: "DOMA Is In Trouble."

As we said, the court spent Wednesday debating the constitutionality of the Defense of Marriage Act and related issues. The justices took their seats at 10 a.m. ET, and the day's session stretched past noon.

As we did on Tuesday, when the issue before the court was California's Proposition 8 ban on gay marriages, we watched for word about what's happening. SCOTUSblog was posting updates on its Twitter page, and Reuters was live blogging again. We monitored their reports and what others had to say — including the discussion hosted by NPR's Frank James and Andy Carvin on the NPRPolitics Twitter account.

Then after the hearing, we spoke with Nina who had helped us analyze Tuesday's action and look-ahead to Day 2.

For even more coverage, click here.

Meanwhile, scroll down to read through how the news emerged:

Update at 12:15 p.m. ET. Hearing Is Wrapping Up:

We hear from NPR producer Brakkton Booker, who is at the court building, that the room is beginning to empty — the sign that today's arguments are over. We're hoping to speak with Nina shortly.

Update at 12:08 p.m. ET. Prediction — Court Is "80 Percent Likely To Strike Down DOMA."

Some reasoning from SCOTUSblog, based on what its experts have heard so far today: "#scotus 80% likely to strike down #doma. J Kennedy suggests it violates states' rights; 4 other Justices see as gay rights."

Update at 11:55 a.m. ET. Not Clear Court Thinks It Can Rule On Constitutionality:

"As the procedural portion of the day's arguments wound down," The Wall Street Journal says, "it wasn't completely clear that the court believed it was free and clear to rule on the merits of DOMA's constitutionality. The reservations the justices expressed during Wednesday's proceedings stood in contrast to last year's health-care arguments, where the court sent clear signals early on that it would decide the constitutionality of the health law."

Update at 11:50 a.m. ET. The "Tiny Dynamo" Behind The Case:

Last week, Nina profiled Edith Windsor, "the 83-year-old taking on the U.S. over same-sex marriage."

Update at 11:40 a.m. ET. Reuters First Lede:

"Midway into a second day of tackling the gay marriage issue, conservatives on the Supreme Court said on Wednesday they were troubled by President Barack Obama's decision in 2011 not to defend in court a ban Congress had approved. ... While the criticisms may not affect how the justices eventually rule on whether the 1996 law violates U.S. equal protection rights, it showed frustration with how Obama has walked a difficult political line on gay marriage."

Update at 11:15 a.m. ET. Scalia, Roberts Critical Of Administration's Position:

The Obama administration's decision not to defend DOMA has thrown the case into a "new world," Justice Antonin Scalia said during the first hour of this morning's hearing, The Wall Street Journal reports. He questions how the Justice Department can both enforce a law and conclude that it's unconstitutional. Chief Justice John Roberts, the Journal says, called the government's actions "unprecedented."

Update at 10:55 a.m. ET. First Hints About What's Happening:

SCOTUSblog tweets that the "#doma jurisdiction argument continues with no clear indication of whether a majority believes #scotus has the power to decide the case."

Reuters says the conservative justices seem to be "troubled" by the Obama administration's refusal to defend the Defense of Marriage Act.

For much more about the cases, see:

The Same-Sex Marriage Cases: A Primer.

NPR.org's "special series" on "Same-Sex Marriage And The Supreme Court."

— SCOTUSBlog's Q&A on how the "historic Supreme Court gay-marriage case will unfold."

Copyright 2021 NPR. To see more, visit https://www.npr.org.

Mark Memmott
Mark Memmott is NPR's supervising senior editor for Standards & Practices. In that role, he's a resource for NPR's journalists – helping them raise the right questions as they do their work and uphold the organization's standards.