The Case on Everybody’s Lips – How arguments in Windsor v US have been received by the commentators

Karl Laird - 6th April 2013

It has been a week since the hearing in Windsor v United States.  Karl Laird provides an interesting analysis of  how commentators elsewhere are evaluating the arguments put before the US Supreme Court.  

Over at the New York Review of Books, David Cole argues that the Court will eventually recognise that it is unconstitutional to exclude gays and lesbians from the benefits of marriage, but that it is unlikely to do so in the cases it heard last week.  Cole believes that Justice Kennedy will vote to invalidate DOMA on the ground that it violates the states’ right to define marriage, but as was already pointed out in this blog, such a ruling would not necessarily lead to the invalidation of the laws that exist at state level restricting marriage to between one man and one woman.

At the Huffington Post, David Fontana states that even if the Court does not invalidate DOMA, Windsor represents a milestone in that the arguments last week lacked the ‘polarizing moral denunciations of homosexuality’ that were evident on previous occasions when the Court considered the rights of gays and lesbians.  Erwin Chemerinsky describes how he was struck during oral argument how weak the case for denying gays and lesbians the right to marry actually was and that, as such, the Court should recognise a constitutional right to same – sex marriage.  

In a comprehensive analysis of the case, John Bursch at SCOTUS Blog argues that Justice Kennedy will provide the fifth vote necessary to invalidate DOMA.  Interestingly, Bursch believes that the analysis Justice Kennedy invokes to invalidate DOMA i.e. that the right to define marriage is within the purview of the states rather than the federal government, will be invoked by him to uphold California’s prohibition on same-sex marriage.  At the same blog, Gerard Bradley states that the Justices sought to place too much reliance on social science ‘data’ on same-sex marriage as a method of resolving a divisive moral question by appealing to non-moral criteria.

At the Washington Post, Dana Milbank notes how obvious it was that Justice Kennedy will be the swing vote in the case, given how ‘solicitous’ both the Court’s liberal members and counsel were of him during the hearing.

Justice Ginsburg’s conception of a marriage recognised by the state but not the federal government as a ‘skim milk marriage’, once again something discussed on this blog, is dissected by Amy Davidson over at the New Yorker.

Michael Dorf of Cornell Law School is rather critical of the performance of the Solicitor General during the hearing and proposes answers that might have been given to questions that were put to him by the Chief Justice on the federalism issue.

At the New York Times, there is an interesting hypothesis into why the Court might have decided to hear the case in the first place.  It is posited that it was in fact Justice Scalia who cast the deciding fourth vote that was necessary to grant certiorari.  The speculation is that Justice Scalia made a calculation that Windsor was the right case at the right time in that the issues were such that the casepresented an avenue by which Justice Kennedy could side with the Court’s liberal wing to invalidate DOMA, but (as has been pointed out on this blog) the impact of such a decision would be relatively minor as the Court would still not recognise a constitutional right to same-sex marriage.  It will be 50 years until the Justice’s papers are released and it is known whether this hypothesis is correct, but it an interesting one nevertheless.

Karl Laird is a Lecturer at Pembroke College, Oxford and a regular contributor to the OxHRH Blog.

 

 

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