Sahil Kapur

Sahil Kapur is TPM's senior congressional reporter and Supreme Court correspondent. His articles have been published in the Huffington Post, The Guardian and The New Republic. Email him at sahil@talkingpointsmemo.com and follow him on Twitter at @sahilkapur.

Articles by Sahil

A majority of the Supreme Court justices delivered a beating to the Defense of Marriage Act during oral arguments Wednesday, signaling a positive outcome for marriage equality.

The four liberal-leaning justices and Justice Anthony Kennedy appeared deeply skeptical that the federal government has legal justification for treating gay and straight couples unequally. They seemed inclined to overturn Section 3 of the 1996 law, which prohibits federal recognition of same-sex marriage and thereby denies benefits to gay and lesbian couples even if they are legally wed in their states.

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During oral arguments Wednesday on the Defense of Marriage Act, Chief Justice John Roberts said political figures are "falling over themselves" to back gay marriage and attributed the dramatic shift in public opinion to the "political force" of gay-rights lobbyists.

"I suppose the sea change has a lot to do with the political force and effectiveness of people representing, supporting your side of the case?" Roberts asked Roberta Kaplan, the lawyer pushing to overturn DOMA. "As far as I can tell, political figures are falling over themselves to endorse your side of the case."

When she argued that the shift has been about a "moral understanding" of equality, Roberts pressed her to admit that "the lobby supporting the enactment of same sex-marriage laws in different States is politically powerful." Kaplan again resisted, to which Roberts rejoined, "I understand that. I am just trying to see how -- where that that moral understanding came from, if not the political effectiveness of a particular group."

House Speaker John Boehner's (R-OH) office weighed in Wednesday after Supreme Court oral arguments on the Defense of Marriage Act. In response to TPM's request for comment, Boehner's spokesman Michael Steel simply said House Republicans will continue to defend the 1996 law as long as the Obama administration refuses to.

"A law's constitutionality is determined by the courts -- not by the Department of Justice," he said. "As long as the Obama Administration refuses to exercise its responsibility, we will."

House Republican leaders are poised to spend up to $3 million in taxpayer dollars to defend DOMA.

One day after considering whether states may ban gay marriage, the Supreme Court will hear oral arguments Wednesday on a separate case about whether the federal government may deny equal marriage benefits to same sex couples legally wed in their state.

The case involves Section 3 of the 1996 Defense of Marriage Act, which prohibits federal recognition of same sex marriage, thereby denying married gay and lesbian couples the tax, retirement and immigration benefits that straight couples are afforded.

Like opponents of California's ban on gay marriage, opponents of DOMA say it's invalid under the Constitution's equal protection clause. And the case also provides justices an escape route to dismiss it without ruling on the merits. But DOMA may be met with more skepticism with this conservative-leaning Supreme Court because it clashes with states' rights.

There are three possible outcomes to the case, according to legal scholars.

First, the Court could uphold DOMA by determining that the federal government has a legitimate interest in treating straight and gay couples differently. The would continue the status quo unless and until Congress repeals the law.

Second, the Court could strike down DOMA upon deciding that married same-sex couples are entitled to the same treatment as married opposite-sex couples. That would provide tax and retirement benefits to gay and lesbian couples and let Americans sponsor a gay partner from another country for legal permanent residency.

Third, the Court could conclude that the case lacks standing and send it back to the lower courts for a do-over. The case is unique in that the White House has refused to defend a federal law, leaving the task to House Republicans. If a majority of justices decide that the House majority is not a proper party to defend this, the Court could punt the decision.

As was the case on Prop 8, the likely swing justice is Anthony Kennedy, who has written the Supreme Court's two key opinions in favor of gay rights. He appeared hesitant Tuesday to impose marriage equality on all states but gay rights advocates are confident that Kennedy will side with them and strike down the Defense of Marriage Act.

Decisions on the DOMA and Prop 8 cases are expected by the end of June.

During Supreme Court arguments Tuesday on whether gays and lesbians have a constitutional right to marry, Justice Antonin Scalia wondered if having parents of the same sex may be "harmful" to children.

Scalia jumped in to make his point when liberal justices were grilling Charles Cooper, the lawyer arguing in favor of Prop 8, California's ban on gay marriage, about what harm it would cause opposite-sex couples.

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During Supreme Court oral arguments Tuesday on California's Proposition 8, justices questioned whether the case had standing, but were narrowly divided on the larger issue of whether the Constitution guarantees a right to same-sex marriage.

The case appeared to break down along ideological lines, with four justices in each camp and Justice Anthony Kennedy once again emerging as the likely swing vote.

Kennedy was skeptical that California or other states have a legitimate interest in outlawing gay marriage. But he was also wary of enshrining it as a constitutional right, saying that would be "uncharted waters" given the novelty of same sex marriage and lack of data about its impacts.

"It's a difficult question that I'm trying to wrestle with," said Kennedy.

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In oral arguments Tuesday morning on California's Proposition 8, the Supreme Court appeared narrowly divided on the question of whether the Constitution's guarantee of equal protection affords same sex couples the right to marry -- but a majority of the justices appeared skeptical that the case has standing and flirted with throwing it out.

Chief Justice John Roberts set the tone by asking each of the lawyers to begin by explaining why the case has standing, as the court had specifically instructed the parties to do.

At least five justices voiced skepticism about whether the case was properly before the court. At issue is whether the case was properly defended. The state of California has declined to defend Prop 8 in court, and so the defense was undertaken by one of the original proponents of the Prop 8 ballot initiative in 2008.

"There's a substantial question on standing," said Justice Anthony Kennedy, who is widely seen as the likely swing vote. "I just wonder if this case was properly granted."

"I suppose there might be people out there with their own personal standing," said Roberts, suggesting that Prop 8 be defended by someone who is personally injured if it is invalidated.

If the case is thrown out on issues of standing, the likely upshot would be to knock down Prop 8, given lower court decisions, without affecting gay marriage bans in other states.

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The Supreme Court will hear arguments Tuesday morning on California's Proposition 8 -- a case that could settle the national debate over marriage equality once and for all.

Or it could throw it back to the political realm for a series of lengthy battles across the dozens of states that have yet to permit same-sex couples to marry.

The case, Hollingsworth v. Perry, is about whether California's ban on gay marriage, adopted by voters in 2008, violates the Constitution's guarantee of equal protection under the law. The lawsuit was brought by Kristin Perry and Sandra Stier, who in May 2009 were denied a marriage license because they were a same-sex couple. Represented by über-lawyers Ted Olson and David Boies, they want the justices to recognize a constitutional right to marry. If a majority of the Court agrees, it would wipe out all state bans on gay marriage.

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Connecticut's two senators wrote a letter on Monday to the National Rifle Association demanding that the group "immediately stop" robo-calling families and friends of the Newtown, Conn., elementary school shooting victims to promote its agenda.

"In a community that's still very much in crisis, to be making these calls opens a wound that these families are still trying hard to heal," wrote Sens. Richard Blumenthal (D-CT) and Chris Murphy (D-CT) to NRA chief Wayne LaPierre. "Put yourself in the shoes of a victim's family member who gets a call at dinnertime asking them to support more assault weapons in our schools and on our streets."

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Updated: 7:25 P.M. ET

Michael Bloomberg is targeting five Democratic senators in red states as part of a $12 million ad blitz launched Monday to build support for mandatory background checks for gun sales.

They are Sens. Mark Pryor (AR), Joe Donnelly (IN), Mary Landrieu (LA), Kay Hagan (NC) and Heidi Heitkamp (ND). Ten Republicans are also on the list.

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