In the 5-4 split, Justice Kennedy, joined by a surprising array of justices (Ginsburg, Breyer, Sotomayor, & Kagan,) delivered an opinion which found DOMA unconstitutional. As law students, we are taught during constitutional law that the Supreme Court looks to history, tradition, and state practice. Today, the Supreme Court considered all of these issues when striking down the Defense of Marriage Act.
According to Scotus Blog: “The federal Defense of Marriage Act defines “marriage,” for purposes of over a thousand federal laws and programs, as a union between a man and a woman only. Today, the Court ruled, by a vote of five to four, in an opinion by Justice Kennedy, that the law is unconstitutional. The Court explained that the states have long had the responsibility of regulating and defining marriage, and some states have opted to allow same-sex couples to marry to give them the protection and dignity associated with marriage. By denying recognition to same-sex couples who are legally married, federal law discriminates against them to express disapproval of state-sanctioned same-sex marriage. This decision means that same-sex couples who are legally married must now be treated the same under federal law as married opposite-sex couples.” Live Blog Opinions, Amy Howe, 10:55am.