September 27, 2012
By Jacob Combs
I just returned from the Second Circuit Court of Appeals in Manhattan, where a 3-judge panel heard oral arguments in the appeal of the DOMA case Windsor v. USA. In June, New York District Court Judge Barbara Jones declared DOMA unconstitutional and ordered Edie be refunded the $363,000 in estate tax she paid upon the death of her wife, Thea Spyer. Windsor’s attorneys appealed the case directly to the Supreme Court, but BLAG, the legal group representing the House of Representatives and defending the law, asked the Second Circuit to take up the case. The 3-judge panel who heard oral arguments today was comprised of Chief Judge Dennis Jacobs, a George H.W. Bush appointee, Judge Chester Straub, a Bill Clinton appointee, and Judge Christopher Droney, an appointee of President Barack Obama.
First up to argue on behalf of BLAG was Paul Clement, the super-star conservative attorney who argued against the Affordable Care Act at the Supreme Court and defended DOMA when it was considered by the First Circuit Court of Appeals. Clement began with a brief overview of DOMA’s legislative history, claiming that Section 2 of the law, which allows states to refuse to recognize marriages given to gay couples in other states, was passed to protect each state’s decision to decide what public policy to pursue on marriage equality. In addition, Clement argued that Section 3, the part of DOMA which limits federal recognition of marriage to heterosexual couples only and is at issue in the Windsor case, was passed so that Congress could reserve the traditional definition of marriage for the purposes of federal law.
Since Edie Windsor and her wife were wed in Canada before New York had marriage equality, Clement also brought up the issue of Edie Windsor’s standing in the DOMA suit, asserting that the Second Circuit should certify a question to the New York Court of Appeals (a state court) asking whether Windsor’s marriage is valid under New York law. The judges seemed quite skeptical of this argument, with Chief Judge Jacobs pointing out that the Court of Appeals had already considered the same legal questions in previous lawsuits.
Not surprisingly, Clement pointed to the Supreme Court’s 1972 decision in Baker v. Nelson, in which the Court dismissed a suit brought by a Minnesota gay couple seeking a marriage license, as an impediment to the Windsor case. Because of Supreme Court precedent at the time, Baker stands as a binding precedent on lower courts. While Chief Judge Jacobs noted that such precedent is limited only to the “precise facts” of the case, Clement argued that the precedent of Baker should apply to the legal issue of marriage equality in general as opposed to the specific facts presented in the 1972 case.
In passing DOMA, Clement argued this morning, Congress didn’t do anything to affect state law when it came to marriage equality; rather, it only affected state law by choosing to maintain a traditional definition of marriage. Judge Straub asked Clement if he could present a Supreme Court opinion that lays out this so-called ‘traditional definition’ of marriage, and Clement pointed to that the Supreme Court case Murphy v. Ramsey. Judge Straub pointed out that Murphy was decided in 1885, to which Clement responded, intriguingly, that all references in prior Supreme Court decisions to marriage were either neutral or specifically heterosexual because the court was writing in a day and age when that was all anybody knew.
Clement and the panel then turned to the question of the proper level of judicial scrutiny to apply to gays and lesbians–that is, whether gays and lesbians merit special protection by the courts when it comes to laws that affect them. Clement argued that gay Americans are not politically powerless because they can seek change through legislative means (for example, when the New York legislature legalized marriage equality). Chief Judge Jacobs pointed out that women can do so as well, but are afforded intermediate scrutiny, to which Clement offered the novel response that a true test of political powerlessness is whether or not a group has ever been denied the franchise. Because African-Americans and women were denied the right to vote, he argued, they were considered by the courts to be politically powerless. In making this argument, Clement asserted that the courts should not take marriage equality “off the table” by providing gays and lesbians intermediate scrutiny, but should rather leave it up to the legislature to decide.
Judge Droney asked Clement whether DOMA should be considered under the so-called ‘rational basis with bite’ test, but Clement argued in response that there is no Supreme Court precedent for such a test. Judge Droney then asked Clement to defend DOMA under the intermediate scrutiny test, which Clement responded to by pointing out Justice O’Connor’s concurrence in the Supreme Court case of Lawrence v. Texas, which noted that there is an important governmental interest in preserving tradition marriage. Clement recognized that his argument was “circular,” but asserted that this was the very nature of a definition. Judge Droney pointed out that it was Justice O’Connor’s concurrence that established the idea of the ‘rational basis with teeth’ test, but Clement responded that her opinion does not represent a majority view of the Supreme Court and should not be used by lower courts.
Next up was Roberta Kaplan, Edie Windsor’s attorney. Kaplan told the court that her client’s position was that DOMA should be considered under the most deferential strict scrutiny test since it narrowly defines a group and broadly affects that group’s rights, but noted that the law would not pass rational basis test since it created a one-time exception to the nation’s marriage laws that only affects gay people. Chief Judge Jacobs asked Kaplan about the money issue, and wondered why Congress couldn’t simply decide to save money by withholding marriage from gays and lesbians. Kaplan replied that a desire to save money had to be connected to another legitimate interest to pass constitutional muster, and when pressed by Judge Straub, she acknowledged the law would pass if some additional interest could be articulated.
When asked by Chief Judge Jacobs about the issue of Baker, Kaplan replied that it is the states who control marriage law, and that Edie Windsor’s case is not about a right to marriage, but whether gay couples who are duly married can be denied federal benefits. For this reason, she argued, the case is completely distinct from Baker. When asked by Judge Droney why Kaplan was arguing for strict scrutiny as opposed to intermediate scrutiny, Kaplan responded that, in her opinion, being gay should be seen in the eyes of the law as more similar to race than gender. Women have physical differences from men, she told the court, that allow for the argument that they have a different ability to contribute to society. Sexual orientation, like race, exhibits no such distinctions.
Chief Judge Jacobs brought up the issue of federalism, asking Kaplan why he shouldn’t accept BLAG’s argument that the states decide who to marry and Congress sets a federal definition. Kaplan replied that in the entire history of the American republic, Congress has always deferred to state definitions of marriage, even on laws that would be odious to us today (such as laws prohibiting interracial marriage). Judge Straub asked why a ruling in the Windsor case that the denial of federal benefits to gays and lesbians was unconstitutional would not necessitate extending that ruling to hold that the denial of state benefits is similarly unconstitutional. Kaplan noted that the same principles present in the Windsor case would apply, but that each state’s public policy pertaining to gay and lesbian individuals is distinct, and that any further litigation on that point would not have to use a Windsor decision as precedent.
Stuart Delery, Acting Assistant Attorney General for the Civil Division, was up next, representing the federal government. Chief Judge Jacobs and Delery briefly discussed the legal peculiarity that the United States was appealing the district court decision even though it agrees with the outcome and then proceeded, once again, to the issue of scrutiny. Delery’s arguments resembled Kaplan’s, and he specifically noted the federal government’s part in the history of discrimination against gay and lesbian Americans.
Interestingly, however, Delery was asked by Judge Droney whether the federal government believed that DOMA should be considered under intermediate scrutiny or under strict scrutiny. (The government had told the court in its brief that it concluded gays and lesbians merited heightened–that is, more than rational basis–scrutiny.) Delery stated that the position of the federal government is that gays and lesbians should be considered under something more than simple rational basis review, but that the United States has no position on whether such scrutiny should specifically be intermediate or strict scrutiny.
Chief Judge Jacobs pointed out that Delery and the federal government’s argument that gays are politically powerless is undermined by the very fact that the Acting Assistant Attorney General was present in court arguing against DOMA. Delery responded that political powerlessness is not an all or nothing proposition, and that gays still commonly lose when their rights are put up to a popular vote. Judge Straub asked Delery why the government had decided to cease defending DOMA (which it had done until early 2011), to which Delery replied that the Justice Department, along with the President and the Attorney General, had reached a new conclusion on the level of proper scrutiny they believed sexual orientation deserved, which prompted a change in the evaluation of DOMA’s constitutionality.
Judge Straub asked Delery which government interest advanced by BLAG would uphold the law should the court resort to using rational basis scrutiny. Delery made it clear that while the federal government does believe that rational reasons for DOMA exist, it does not believe such reasons should prevail in court. Pressed by Judge Straub, however, Delery pointed to the maintenance of the status quo, a desire for uniformity in federal benefits and the decision to let the states decide for themselves how to proceed on marriage equality.
On rebuttal, Clement told the court that it is inaccurate to say that Congress has never defined marriage, since it sometimes overrides state definitions of marriage in specific contexts. In addition, he argued that before DOMA was passed in 1996, Congress could defer to state definitions and ensure uniformity all at once, since no state allowed same-sex couples to marry. In passing DOMA, he argued, Congress opted for uniformity over deference in the future.
At a press conference after the hearing attended by Edie Windsor and the plaintiffs in another DOMA case out of Connecticut called Pedersen v. OPM (which will also be before the Second Circuit and has been appealed to the Supreme Court), Windsor responded to a reporter’s question about how she felt being the public face against DOMA by saying, “I love it.” We were on a busy New York street and the press had to crowd around her because Edie talked at a fairly low level, but the words she spoke were a moving testament to just what the case means to her. Beating DOMA, she told us, would be “the beginning of the end of stigma, the beginning of the end of suicides.” It would make a difference to gay kids and gay teens all across America who found themselves falling in love for the first time. If the Supreme Court hears her case, Windsor said, she hopes to be there–and also, she added wryly, she hopes she’ll still be alive.
It will likely be several months before the Second Circuit issues a ruling in Edie’s case. In the meantime, the Supreme Court could choose to take up her appeal, which would most likely result in a stay on the case at the circuit court level. As always, we’ll cover any development that takes place. Feel free to ask me any questions about today’s arguments you might have in the comments, and I’ll do my best to answer them!