After this week’s arguments in the Supreme Court over same-sex marriage, the conventional wisdom is that five justices --including perennial swing vote Anthony Kennedy – are likely to strike down the federal Defense of Marriage Act defining marriage for federal purposes as the union of a man and a woman.
Supporters of same-sex marriage should take what they can get, but the likely rationale for such a decision – that Congress unconstitutionally overrode state definitions of marriage – is the ultimate argument of convenience for liberals, an example of what I like to call fair-weather federalism. And, of course, the states'-rights argument against DOMA undermines the case for gay marriage in the Proposition 8 case, in which California voters chose to write a ban on same-sex marriage into the state Constitution.
With a high school debater’s eye for a possible contradiction in the opposing argument, Chief Justice John Roberts put an awkward question to Solicitor General Donald Verrilli:
“You agree that Congress could go the other way, right?” Roberts asked. “Congress could pass a new law today that says, We will give federal benefits. When we say ‘marriage’ in federal law, we mean committed same-sex couples as well, and that could apply across the board. Or do you think that they couldn't do that?”