For almost two hours Supreme Court justices heard arguments on the federal Defense of Marriage Act. The court covered wide ground, once again spending a significant amount of time on the topic of standing. This time the questions were around whether the Bipartisan Legal Advisory Group (BLAG), under the leadership of House Speaker John Boehner, R-Ohio, had the legal right to sue. As in Proposition 8, the standing question could give the court the option to avoid the case by ruling that it should not have gone through the court system.

The justices also spent time on whether the federal government should be in the marriage business at all, or if that should be left to the states. Several justices also challenged President Barack Obama's 2011 decision to stop upholding DOMA, and what kinds of precedent that sets. Solicitor General Solicitor General Donald Verrilli Jr. often tried to bring up the equal protection clause, and whether it applies to gays and lesbians. However, the court often took that question and went back to federal versus states legal rights.

UC Davis Law Professor Vikram Amar discussed the oral arguments with KQED News.

Standing

Amar: If one is going to read tea leaves based on the oral argument, it seems as if the court is not inclined to do something huge, in striking down the laws of 40 states that currently prohibit same-sex marriage. My big take-away from this has always been, the court did not really want to take these cases. … They may end up doing nothing at all, because both cases may get resolved on procedural standing grounds.

The basic idea is courts exist to decide crisp disputes, not just answer questions everyone wants answered. So unless you have somebody who is a plaintiff who has a lot at stake, and you have a defendant who is an appropriate defendant, then the court simply should not be able to render a ruling.