Given the Court's composition and the political environment at that time, is it likely that the Court would have reached a similar conclusion without the Federalism angle? I would expect Ginsburg, Sotomayor, Kagan, and Breyer to be receptive to an argument resting solely on equal protection. The wild card would have been Kennedy; I can never seem to figure out which direction he is heading.
Probably not. The four liberals were already ready to strike down DOMA on equal protection grounds, but Kennedy’s vote was decisive. He leaned on federalism because it let him avoid announcing a new level of scrutiny *and* made DOMA look like a double wrong--both an intrusion into state authority over marriage and an act of discrimination. It also reinforced his view that states should stay in the marriage business, since a pure equal protection ruling might have encouraged them to exit marriage licensing altogether.
Given the Court's composition and the political environment at that time, is it likely that the Court would have reached a similar conclusion without the Federalism angle? I would expect Ginsburg, Sotomayor, Kagan, and Breyer to be receptive to an argument resting solely on equal protection. The wild card would have been Kennedy; I can never seem to figure out which direction he is heading.
Probably not. The four liberals were already ready to strike down DOMA on equal protection grounds, but Kennedy’s vote was decisive. He leaned on federalism because it let him avoid announcing a new level of scrutiny *and* made DOMA look like a double wrong--both an intrusion into state authority over marriage and an act of discrimination. It also reinforced his view that states should stay in the marriage business, since a pure equal protection ruling might have encouraged them to exit marriage licensing altogether.