"A clear majority of the country thinks the legal status of same-sex marriage should be the same in Alabama as it is in New York, according to a poll released Thursday."
"The latest national poll from Quinnipiac University showed that 56 percent of American voters believe the Constitution should determine whether or not gay nuptials are legal, and that the legal status should be the same in all 50 states. Only 36 percent believe that individual states should make their own laws governing same-sex marriage."
The President, however, has maintained it's for the states to decide:
"President Barack Obama still maintains that the issue should ultimately be left up to the states instead of making it a constitutional right, although he said last month that he couldn't imagine a state-level gay marriage ban would be in line with the Constitution."
"The poll also found that 50 percent said they support same-sex marraige, while 41 percent said they are opposed. In last month's Quinnipiac poll, 47 percent said it should be legal compared with 43 percent who said they were opposed."
In the current case regarding DOMA, however, we see this federalist issue is of great consequence. What seems clear is this. There's a good chance DOMA will be struck down. However, the question is why. Gay marriage advocates ideally want ti to be declared unconstitutional. This, however, is what swing Justice Anthony Kennedy is trying to avoid.
If DOMA is struck down because it's unconstitutional then this is another case of "legislating from the bench" where the Court would effectively make gay marriage legal in all 50 states now or at least go a long way to it.
Kennedy would prefer to say that DOMA is invalid because it violates states rights. This put the Soliciotr General in an awkward position:
"Perhaps conscious of Kennedy’s predicament, Roberts tried to build consensus against striking down DOMA on federalism grounds, knowing that neither side arguing the case was seeking that middle path. He repeatedly — and successfully — asked the government’s anti-DOMA lawyer to affirm that it does not believe the 1996 law violates states rights."
“So just to be clear, you don’t think there is a federalism problem with what Congress has done in DOMA?” Roberts asked U.S. Solicitor General Donald Verrilli on Wednesday.
"We — no, we don’t, Mr. Chief Justice,” Verrilli responded.
"Lyle Denniston, a veteran Supreme Court analyst with the award-winning SCOTUSblog, described Roberts’ move as “a strategic effort to put Kennedy in a box.”
Verrilli here also contradicted the President's official position probably not liking the precedent of suggesting state law supersedes federal law.
It's clear that Kennedy wants middle ground much like the ground that Roberts himself found when he declared ObamaCare a tax thereby finding it constitutional.
Roberts is trying to deny Kennedy what he himself used. Clearly the preference is to use the federalist argument. If it is what he uses this may be the first time the federalist argument has ever been used to expand rather than curtail civil rights.
In the long term however, Rush Limbaugh himself admits it: it's just a mater of time.
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