March 27, 2013
By Jacob Combs
Part Three: the merits
On to the most exciting section of today’s oral arguments: the constitutional merits of DOMA. My general impression today is that there are at least five votes to strike down the law, although some Justices seemed to lean today towards a decision on the question of the federal government’s intrusion on traditionally state affairs as opposed to a strict equal protection analysis.
Clement was up first. He framed the legal question in the case narrowly: if it is constitutional for states to define marriage as something limited to opposite-sex couples, shouldn’t it also be constitutional for the federal government to have its own definition? Justice Ginsburg jumped on this quickly, pointing out that a marriage that does not provide federal benefits might prompt anyone to ask, “What kind of marriage is this?”
Justice Kennedy noted that DOMA restricts same-sex couples from accessing over 1,000 federal rights, and told Clement he was “at real risk of running in conflict” with states’ police power to regulate marriage. Clement replied that DOMA simply provides for consistency in the federal definition of marriage, but Kennedy pointed out that it only provides consistency when it comes to differing state marriage laws regarding sexual orientation and not any other classification.
Justice Sotomayor also took issue with the idea that DOMA provides consistency for federal benefits, saying that Clement’s argument elides the fact that the federal government treats married couples in New York differently from those in Nebraska. Justice Breyer picked up this line of reasoning, asking if Congress could constitutionally limit federal marital benefits on the basis of age or residency. Clement said that it could, which Breyer scoffed at, saying that Clement’s argument was essentially that a desire for uniformity could save otherwise irrational classifications. Why are marriages between same-sex couples different, he asked, and what about them makes the federal government need a uniform national definition for federal benefits?
Clement told Breyer that DOMA allowed the states to make decisions about marriage equality for themselves, instead of allowing one state to provide equal marriage rights (in 1996, the fear of those who supported DOMA was that this state would be Hawaii) and thus bring marriage equality to the whole country. Justice Sotomayor was unconvinced, asking why the federal government should worry about what would happen to the states in this regard. Justice Kennedy also pointed out a central contradiction in Clement’s argument that DOMA was passed in order to help the states: even if Section 2 of the law protects states from recognizing other states’ same-sex marriage licenses, Section 3 of the law undoubtedly harms states that do decide to extend equal marriage rights to same-sex couples. In essence, Kennedy wryly pointed out, the only states that got the federal government’s help on DOMA were those who did what the government wanted, i.e., retained the traditional definition of marriage for opposite-sex couples only.
Clement kept coming back to his uniformity argument, but several of the Justices seemed quite unconvinced. Justice Ginsburg noted that marriage affects every aspect of life, and said that DOMA essentially created two types of marriage in America, the full kind and another one that’s more like “skim milk.” Justice Kagan denounced the uniformity argument entirely, pointing out that the only uniform aspect to the federal government’s definition of marriage before DOMA was that it deferred to the states’ own definitions. Since such a federal definition has never been attempted before DOMA, she asked, shouldn’t that be a red flag that the law was passed out of animus towards gays and lesbians?
Justice Sotomayor continued on this line, quoting the House record from the passage of DOMA that read that the law expressed Congress’s “moral disapproval of homosexuality.” Justice Breyer asked Clement to assume that uniformity isn’t enough to save DOMA and asked for a list of “really specific things” that would explain why Congress needed to limit federal marital benefits to same-sex couples for the sake of uniformity.
Next up was Solicitor General Donald Verrilli, Jr., who faced very tough questioning from the Justices. Verrilli presented the federal government’s position that there was no fundamental federalism problem with DOMA, instead asking the Court to strike down the law based on equal protection grounds, but the Justices proceeded to tear apart Verrilli’s federalism contention. Chief Justice Roberts asked if it would be constitutional for Congress to pass a law that explicitly extended federal marital benefits to same-sex couples, and seemed taken aback by Verrilli’s answer that such a law would be admissible. Justice Kennedy asked if Verrilli was saying that Congress could dictate a definition of marriage for the states, telling the Solicitor General that the Court didn’t even need to address the equal protection question if the law was an unconstitutional exercise of federal power.
Alito brought up the issue of gay soldiers injured in the line of action. Assume, he said, that there are three soldiers injured, all of whom are in committed relationships. One is married, another is in a domestic partnership and the third is neither. Should only the first one’s spouse be allowed to visit them in the hospital? Verrilli kept to his argument, saying that the question in the DOMA case was the problem of equal protection.
Chief Justice Roberts pressed Verrilli on whether a lack of DOMA in 1996 would have meant that when one state extended equal marriage rights, all of the states would have had to do the same. Verrilli responded that the federal government should have continued its policy of deferring to the states, and said that an interest in uniformity cannot save the law. The Chief Justice asked if that meant that all of the legislators who voted for DOMA and the president who signed it (Clinton) were motivated by animus. Verrilli said that that was not necessarily the case, but then said pointedly that “Section 3 is discrimination” and that singling out gays and lesbians for disfavor does not comport with the ideals of the U.S. Constitution.
Justices Sotomayor and Breyer pressed the Solicitor General on whether an invalidation of DOMA would mean that the Court would also have to strike down state marriage bans. In response, Verrilli said that states could make their own rationales in favor of their laws for the courts to determine, but that the federal government’s rationale for DOMA clearly fails to pass muster.
Last up was Roberta Kaplan, representing Edie Windsor. Kaplan was asked many of the same questions as Solicitor General Verrilli, but in response to a question from Justice Alito as to what would happen without DOMA if a same-sex couple married in one state and then moved to another without marriage equality and challenged that state’s marriage laws, Kaplan said that the courts would need to consider the individual state’s reasons for limiting marriage to opposite-sex couples. Regardless, though, she argued, no compelling argument can (or has) been made to explain why the federal government should treat same-sex couples differently.
Justice Breyer asked if DOMA was simply a decision by Congress to “stay out” of the marriage equality issue, but Kaplan disavowed this idea, saying that DOMA in no way stayed out of the question, instead setting up a legal scheme that would eventually punish states that extended equal marriage rights to same-sex couples. In response to the same question about pro-DOMA legislators being motivated by animus (asked by Roberts as he had asked Verrilli), Kaplan said, “I think times can blind.” Since then, she argued, there has been a sea change in the public understanding of gay and lesbian individuals and their relationships.
Chief Justice Roberts made a brief nod to the question of whether gays are a politically powerful class (an important element of the Court’s consideration of which level of scrutiny it should employ to review DOMA), saying that “political figures are falling over themselves to endorse [Kaplan's] side of the case.” Kaplan responded that gays and lesbians have been uniquely discriminated against, and that they are currently less powerful than women were when the Supreme Court decided gender was a class that merited heightened scrutiny.
In his final rebuttal, Clement pointed out Verrilli’s position that the federal government sees no federalism problem inherent in DOMA. He again underscored the importance of a uniform federal definition of marriage, and said that the ‘sea change’ to which Kaplan referred was occurring because of the democratic process–a process, he told the Justices, that the Court should not interfere with.
The bottom line: what does it all mean?
Because of the Justices’ skepticism regarding Clement’s arguments in favor of BLAG, it seems quite likely that there are at least five votes on the Court to invalidate DOMA, especially if such a decision were based on issues of federalism rather than an equal protection question. Based on today’s arguments, it seems possible that Chief Justice Roberts would join such an opinion striking down the law, and that Justice Kennedy would rather rule on federalism grounds than equal protection grounds if he can. Justice Alito’s questions were less clear, but also seemed to open the door to the idea that he could rule against the law as well.
The gateway question, however, is whether the Court believes BLAG had standing to defend DOMA or if the federal government could appeal a decision it agreed with. On the first count, it seemed that there were not five votes on the Court to grant BLAG standing. But the Court’s four liberals, as well as Justice Kennedy, did seem to lean towards a decision that the federal government’s appeal was proper and that the law could be considered on the merits.
Of course, we’ll have to wait a few months to find out. A final decision in both cases should come by the end of June, and could be handed down even sooner. Until then, gay and lesbian Americans’ rights to marriage and to federal benefits are in the hands of the Justices.