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.