"I think DOMA's in trouble and I think it's in trouble because Anthony Kennedy was repeatedly concerned that the Defense of Marriage Act violates states' rights," Toobin said on CNN.
"Anthony Kennedy as we all know the swing vote on this Court is someone who is concerned about gay rights although he said very little, I think nothing about the issue of whether the Defense of Marriage Act violated gay people's constitutional rights. He was clearly very concerned that the Defense of Marriage Act was invading the province of the state to define marriage. That's a state function, usually. And that would certainly be suggesting that he was going to strike down the law. And certainly the other liberals, the four Democratic appointees looked like they were going to vote to strike it down."
In addition, NBC News Justice Correspondent Pete Williams reported that there seemed to be five votes to invalidate the law.
Williams said comments from Justice Anthony Kennedy indicated that he had problems with law: whether Congress had the right to say what marriage is, as well as the lack of narrow focus in the 1996 law which may make it unconstitutionally over-broad.