How will Doma fare in front of the US supreme court?

Despite the Roberts court's conservative lean, there is reason to hope it will rule the Defense of Marriage Act unconstitutional
same sex marriage proposition 8 California gay rights
Same-sex marriage rights activists now await the supreme court's hearing on the constitutionality of Doma. Photograph: Reuters/Lucy Nicholson Lucy Nicholson/Reuters

On 31 May, a three-judge panel of the first circuit court of appeals held a key provision of the Defense of Marriage Act (Doma) unconstitutional. It is nearly certain, however, that the case will be headed to the supreme court, and because the decision was stayed pending appeal, it will not even apply in the New England states covered by the first circuit.

So, the key question is: what will the supreme court will do when it hears the case?

The first circuit opinion, written by widely respected Republican appointee Michael Boudin, had a decidedly conservative cast that makes surviving a supreme court appeal more likely. We can assess the potential votes in descending order of certainty.

The Democratic appointees

Every member of the court's relatively liberal wing – represented by the Clinton appointees Stephen Breyer and Ruth Bader Ginsburg, and the Obama appointees Sonia Sotomayor and Elena Kagan – is virtually certain to support the first circuit opinion ruling Doma unconstitutional. Breyer and Ginsburg have voted to accept gay and lesbian rights claims during the much less favorable political circumstances that led to Doma's passage; they will not waver.

Sotomayor and Kagan do not have a track record on gay and lesbian rights per se, but as the Obama administration's refusal to defend the act's constitutionality indicates, there is a near-consensus among mainstream liberals that Doma does not pass constitutional muster. The litigants challenging Doma start with four votes in the bank, and will need only one of the court's five Republican nominees to prevail.

The Republican no-hopers

These votes are exceedingly unlikely, however, to come from Justices Antonin Scalia or Samuel Alito. While Scalia is not a completely reliable vote for Republican interests, his attitude towards gay and lesbian rights can be seen in his dissents, liberally salted with rightwing antigay buzzwords, in Romer v Evans and Lawrence v Texas. He can safely be written off by opponents of Doma's constitutionality. Justice Alito has yet to vote in a major gay and lesbian rights case but is the court's most consistent Republican party-liner, and is similarly unlikely to surprise.

The great Republican hope

As usual, the constitutionality of Doma is likely to be determined by the court's most common median vote, the Reagan appointee Anthony Kennedy. While this is more likely than not to be bad news for progressive constitutional arguments, here his vote to strike down Doma seems quite likely. Kennedy wrote the majority decisions in the landmark cases that provoked the angry dissents from Scalia. And while those cases required accepting constitutional rationales more associated with liberals, this case also presents a federal intrusion into policy territory typically reserved for states, which makes Kennedy even more likely to be skeptical of Doma.

The Republican wild cards

There are two other Republican appointees whose votes are much less certain. Justice Clarence Thomas is perhaps the most reactionary member of the court all things considered, but his idiosyncrasies and attachment to grand legal theories make him less predictable, on some issues, than Justice Alito. Thomas is by far the court's strongest skeptic of federal power, which may cause him to see some appeal in Boudin's argument that Doma "does burden the choice of states like Massachusetts to regulate the rules and incidents of marriage". He also distanced himself from some of Justice Scalia's culture-war rhetoric in his own Lawrence dissent, calling the Texas ban on same-sex sexual relations "uncommonly silly". So whether he opposes same-sex marriage enough to override his federalist principles is unclear.

Chief Justice John Roberts's positions on federal power are less clear and unlikely to be as extreme as Thomas's, but he has one reason to join a majority opinion striking down Doma: the chief justice only controls the opinion assignment if he is in the majority. Roberts (like Thomas) is enormously unlikely to be a decisive vote to strike down Doma, but in the likely event that Kennedy votes to join the liberals, he may join the majority and justify the outcome with a more narrow opinion than one assigned (or written) by Ruth Bader Ginsburg would look like.

In conclusion

Overall, the picture is quite promising for Doma's opponents – especially compared to what one might normally expect of the Roberts court. It is hard to see five votes to uphold Doma given that both major arguments against the act have proven appeal to Justice Kennedy, and the fact that as many as seven votes might reasonably be in play for Doma's opponents.

All in all, it looks like Thursday's ruling could be next year's gay and lesbian rights landmark at the supreme court.