Filed under: DOMA Repeal
By Scottie Thomaston
The Supreme Court could strike down Section 3 of the federal Defense of Marriage Act next month: the Court’s decision is expected in the final weeks of June, right before the Justices leave for their summer recess. If the Court decides to uphold Section 3 of DOMA, Congress could still take action on the repeal bill, the Respect for Marriage Act. That bill would eliminate DOMA’s language defining marriage for purposes of federal law and require the federal government to recognize same-sex marriages for if the couple married in a state where it’s legal. The federal government typically looks to state law to determine the legitimacy of a marriage, and same-sex marriage has been the only exception, because of the federal DOMA. (Indeed the FEC reiterated that stance this week in an opinion holding that they would have recognized same-sex marriage but for DOMA’s command.)
The Respect for Marriage Act hasn’t been introduced in this session of Congress, but last year it had 32 Senate co-sponsors, and it picked up Republican support in the House of Representatives. The Washington Blade is reporting today that lawmakers have decided they won’t reintroduce the bill until after the Court’s ruling in United States v. Windsor is handed down, but if the Court challenge fails and the bill is reintroduced it may pick up Republican support in the Senate for the first time:
Lawmakers are holding off on introducing legislation that would repeal the Defense of Marriage Act until after the Supreme Court rules on the anti-gay law, according to multiple sources familiar with the bill, as one Republican LGBT organization expects Sen. Rob Portman (R-Ohio) to sign on as a co-sponsor.
A number of LGBT advocates familiar with the legislation, which has been known as the Respect for Marriage Act, told the Washington Blade its lead sponsors — Rep. Jerrold Nadler (D-N.Y.) in the House and Sen. Dianne Feinstein (D-Calif.) in the Senate — are delaying introduction until after the expected court ruling in June.
According to the report, the executive director of the Log Cabin Republicans believes that Senator Portman, since he recently announced support for marriage equality, would sign on to the Respect for Marriage Act as a co-sponsor, though he says he hasn’t heard from Portman himself on the subject.
Republican support for the RFMA would be incredibly helpful in the event the Supreme Court holds that DOMA is constitutional: Congress has begun its work on a comprehensive immigration reform bill, and while some legislators are saying that they hope to include same-sex couples in the finished product, by way of introducing the Uniting American Families Act (UAFA) to allow citizens to sponsor their partners so they can stay together in the United States, that outcome is less than certain. Some congresspeople are already suggesting that an immigration bill is not likely to pass if it includes protections for same-sex couples. If it fails, the RFMA would be the last available option for binational same-sex couples.
For their part, members of Congress are considerably more silent on the bill, according to the report. And it seems likely to stay that way, at least until the Supreme Court makes its ruling in Windsor.
By Scottie Thomaston
Last week, another Republican in the House of Representatives, which is defending Section 3 of the federal Defense of Marriage Act, said in a speech that the Supreme Court should strike down Section 3, the federal definition of marriage that excludes same-sex couples. Rep. Justin Amash represents MI-03, and he is considered one of the more conservative people in Congress.
Amash hasn’t said he supports marriage equality generally, and during his speech he said:
“My view has always been that government should not be in the business of defining or redefining marriage,” Amash said. “I see it as a private issue. I personally see it as a religious issue.”
His issue with the law is one of federalism, concerns that Justice Kennedy and others voiced during oral arguments in United States v. Windsor this week. States have so-called “police powers” and the Court has even recognized that one of those powers is the regulation of marriage. The federal government shouldn’t be in the business of deciding which relationships are valid and which are not:
“I don’t want the government deciding who has a legitimate baptism, who has a legitimate communion, who’s involved in other personal relationships we have,” Amash said. “I want the government out of it.”
On DOMA specifically, Amash said he has “always opposed the federal definition of marriage in DOMA. So if it were repealed, I think that would be a step in the right direction, with respect to that portion of DOMA.”
Amash’s change of heart (as Dave Weigel points out, in 2011 Amash thought the law was valid) comes just after many politicians from both parties have announced support for marriage equality and have said Section 3 of DOMA should be overturned.
At last week’s arguments at the Supreme Court, it seemed like there are at least five votes for striking down Section 3 of DOMA, and while there doesn’t appear to be a consensus on how to do it and what legal rationale should be used, the federalism concerns ended up playing a significant role in the arguments. Justice Kennedy talked about how “when [there are] 1,100 laws [that involve the definition of "marriage" or "spouse"], which in our society means that the Federal government is intertwined with the citizens’ day-to-day life, you are at — at real risk of running in conflict with what has always been thought to be the essence of the State police power.”
Other Republicans and conservatives have voiced concerns about the federalism aspects of the definition of marriage. Several federalism scholars filed a brief in the case suggesting Congress lacks the power to regulate marriage. And of course, at the First Circuit Court of Appeals in the Gill case, the panel wrote that there is no valid Tenth Amendment claim (such as the one raised by the state of Massachusetts in that case) but that there are real federalism concerns with the government involving itself in state issues, so those concerns are at play even in the equal protection analysis, weighing heavily in favor of striking down Section 3 of DOMA.
If the Court were to somehow avoid addressing the constitutionality of Section 3 (which doesn’t seem like a realistic possibility at this point) it would be up to Congress to pass the repeal bill, the Respect for Marriage Act. And since the House is controlled by the Republican party, if DOMA is to ever be repealed, more Republicans would necessarily have to abandon their current positions on the validity of the law.
DOMA oral arguments at the Supreme Court: an in-depth look at questions of standing and jurisdiction
By Jacob Combs
Part Two: questions of standing and jurisdiction
This post and my next will take a deeper dive into the two separate sections of today’s oral arguments. A caveat: these may still be somewhat wonky because the arguments themselves certainly were. For the most part, Justices’ questions here are my paraphrases, not direct quotes, since it was very, very difficult to write down full quotes as I was furiously writing on my steno pad. Direct quotes are in quotation marks. Here goes!
The first lawyer up to argue was Vicki Jackson, a Harvard Law professor whom the Court appointed to take the position that BLAG does not have standing to defend DOMA and that the Supreme Court has no jurisdiction over the Windsor case since the federal government agrees with Edie Windsor that DOMA is unconstitutional. Her central arguments were simple: the federal government is only asking the Supreme Court to affirm the lower courts’ decisions, as opposed to asking for redress, which is the traditional remedy that courts can supply, and BLAG cannot point to any cognizable injury that it would suffer if DOMA were overturned.
Justice Scalia asked why the district court hadn’t simply ordered the federal government to refund Edie Windsor’s money without deciding the merits of DOMA, since the federal government argued against DOMA at that court (after modifying its position from its original defense of the law). Justice Breyer likened the president’s position to that of a trustee who feels obligated to obtain a final, authoritative decision on a question of law before relinquishing some of the trust’s money, even if he or she were to agree with the legal decision on the law. Kennedy seemed to agree that there was an injury in the Windsor case for the government, with Kagan jumping onto his point to say that whether the government is “happy or sad” to pay the tax refund, there nevertheless is a fiduciary injury. Justices Sotomayor and Breyer seemed on board with this reasoning.
As I mentioned before, Chief Justice Roberts told Deputy Solicitor General Sri Srinivasan that the federal government’s argument that it could appeal a ruling where all parties are pleased by the decision would be “wholly unprecedented.” Scalia expressed deep discomfort with the idea, calling it a strange new world where the Attorney General could simply choose not to defend laws, which he worried would bring many more cases like Windsor (where both parties agree) to the Supreme Court. In defense of the government’s position, Srinivasan quoted a previous Supreme Court decision, INS v. Chadha, which held that the United States is the aggrieved party in any ruling against it, even if it agrees with the ruling. Justice Sotomayor steered Srinivasan to the question of BLAG’s standing, to which he also quoted Chadha, which he argued suggested the houses of Congress should join cases through amicus status rather than as full parties.
Arguing for BLAG, Paul Clement read Chadha to the reverse effect, arguing that it in fact points to the House as the proper party to defend a law in court if the executive won’t. Chief Justice Roberts pushed back on Clement: could Congress file to join a lawsuit if it didn’t like the executive’s arguments in defense of the a law it had passed? Kagan then jumped in: could the House try to join a lawsuit if the attorney general decided to interpret a law more narrowly than it liked? Kennedy asked if the Senate could join as a party to defend DOMA–which Clement said it could not–while Justice Alito asked why one house of Congress alone should be able to defend a law when it takes both of them to pass one. Clement also ridiculed a motion to dismiss filed by the federal government when the Windsor case was in the district court that the government wrote was essentially for the purposes of creating a suitable appeal. In response, Justice Kennedy admitted that that brief’s intricate argumentation could give any reasonable reader “intellectual whiplash.”
Long story short, it seemed unclear from today’s oral arguments whether the Supreme Court will get past the standing questions to consider DOMA on the merits. From the Justices’ questioning, there didn’t look like much support for the contention that BLAG has standing to join the case as a party. But the question of whether the United States can appeal a decision that it agrees with is much more central to the Windsor case: if the Court finds the appeal was invalid, it simply will not be able to rule on the merits of the law. Justice Kennedy and the court’s liberals did seem to lean towards the idea that the Court does have jurisdiction since there was a fiduciary injury to the United States. That means the Court will probably issue a decision on the merits.