REID PILLIFANT | Capital New York
“I thought it was a very good oral argument,” Rep. Jerry Nadler told Capital this afternoon, after attending the Supreme Court’s hearing on the Defense of Marriage Act. “I was encouraged by it. I’m optimistic.”
Nadler has been a longtime opponent of DOMA, having sponsored a bill to repeal the law and coordinated the House’s amicus briefÂ arguing the law is unconstitutional, which was joined by 212 members of Congress.Â
He also happens to be the congressional representative for Edith Windsor, the plaintiff in the case, who is challenging the federal government’s unwillingness to recognize the marital status of she and her late wife, Thea Spyer.
At least five justices sounded skeptical of the federal government’s ability to deny benefits to married couples like Windsor, and Nadler suggested there could be one more sympathetic justice.
“At least five, and I wouldn’t be surprised if there was a sixth on federalism,” he said, referring to Chief Justice John Roberts.
Nadler said he didn’t expect the justices to dodge this case, despite the hour-long argument on the court’s jurisdiction, and said he was encouraged by the justices’ questions, particularly from Anthony Kennedy, the likely swing vote.
“The key argument was the Equal Protection argument,” Nadler said. “And there was no answer. They couldn’t answer it.”
Kennedy, in particular, questioned Congress’s ability to coerce the states to go along with the federal government’s definition of marriage, which Nadler said “may give you some indication of where Kennedy is heading.”
Nadler predicted the court would strike down DOMA as unconstitutional, citing his correct prediction that the Affordable Care Act would be upheld, even though he said he had been wrong about the court’s reasoning in that case.
“I was wrong on every single one of them,” he said, calling his correct prediction “pure happenstance.”
If the court does strike it down, Nadler said “it takes out of a bone of contention for the next election, perhaps,” but wouldn’t necessarily help or hurt Democrats.
“I don’t think people are debating that act in particular,” he said.
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