DOMA in the balance
Questioning at the Supreme Court during oral arguments on Wednesday was just as intense as the previous day as justices grilled attorneys on standing and federalism issues related to the Defense of Marriage Act.
The prospects of the court striking down the 1996 law seem strong as no justices expressed any particular love for DOMA, but the court possibly may not reach consideration of the constitutionality of the law because of standing and jurisdictional issues.
Associate Justice Ruth Bader Ginsburg, a Clinton appointee, expressed concern over DOMA because benefits — including Social Security survivor benefits and access to family medical leave — are withheld from married same-sex couples under the law.
Under DOMA, Ginsburg said one might ask the question “What kind of marriage is this?” and compared the law to a statute that creates “real marriage, and then skim-milk marriage.”
Associate Justice Anthony Kennedy, a Reagan appointee who’s considered a swing vote in the case, made many inquiries about DOMA, but at one point may have tipped his hand when he talked about the “real risk” of encroaching on state power to define marriage.
At issue in the case is Section 3 of DOMA, which prohibits federal recognition of same-sex marriage. As a result of that 1996 law, Edith Windsor had to pay $363,000 in estate taxes in 2009 upon the death of her spouse, Thea Spyer.
The courtroom was just as packed for the DOMA arguments as it was for the Prop 8 arguments on Tuesday. Among those seen in attendance were Human Rights Campaign President Chad Griffin, Senior Adviser to President Obama Valerie Jarrett and House Minority Leader Nancy Pelosi (D-Calif.).
Robert Kaplan, a New York-based private attorney working in coordination with the American Civil Liberties Union, said DOMA violates equal protection rights under the U.S. Constitution for not just Windsor, but all married gay couples.
“Because of DOMA, many thousands of people in nine states and the District of Columbia are being [treated differently] by the federal government simply because they’re gay,” Kaplan said.
Arguing on behalf of DOMA was Paul Clement, a former U.S. solicitor general under President George W. Bush who was hired by House Republicans to defend the law after the Obama administration declined to do so in February 2011.
Clement said DOMA helps create uniformity for the federal government as the democratic process is underway deciding the issue of marriage.
“All DOMA does is take this term where it appears in federal law and defines it where it applies in federal law,” Clement said.
U.S. Solicitor General Donald Verrilli, who’s taken up litigation against DOMA on behalf of the Obama administration, argued DOMA is unconstitutional because it violates equal protection for gay people under the U.S. Constitution.
“What Section 3 does is exclude an array of benefits from lawfully married couples,” Verrilli said.
Further, he said DOMA should be subject to heightened scrutiny, or a greater assumption it’s unconstitutional, because of the “terrible discrimination” faced by gay couples.
Verrilli also disputed Clement’s argument that DOMA helps ensure uniformity for the U.S. government, saying “if anything, it makes federal administration more difficult.”
Standing was such a key issue in the DOMA case that justices allotted extended time and the first half of the oral arguments to consider the issue.
There are two questions: whether House Republican-led Bipartisan Legal Advisory Group has standing to defend DOMA in court, and whether the Supreme Court has jurisdiction to hear the case because the U.S. government appealed even though it got what it wanted when the district ruled against the anti-gay law.
Vicki Jackson, a Harvard law professor hired by the court to answer this question, made her case for why BLAG doesn’t have standing and the court doesn’t have jurisdiction to decide the issue.
Jackson said the U.S. government lacks standing to appeal because it has not asked the court to overturn lower courts’ decisions.
She also expressed doubts about BLAG’s standing, saying separation of powers “will not be meaningful” if Congress stays out of defense of a statute unless it thinks the executive branch is doing its job badly.
Clement maintained BLAG has standing because the House has an interest in preserving a law if the executive branch determines it won’t defend the measure in court.
“The House’s [purpose] is to pass legislation, and if it’s going to be repealed, only be repealed through a process in which the House participates,” Clement said.
Associate Justice Sonia Sotomayor, an Obama appointee, expressed skepticism that BLAG has standing to defend DOMA in court.
“But the appointment of BLAG is strange to me because it’s not in the statute, it’s in the House rules,” Sotomayor said.
Deputy Solicitor General Sri Srinavasan argued the court has jurisdiction to defend DOMA, pointing to court precedent created by INS v. Chadha, an immigration-related case that came before the court in 1982. Srinavasan also said the U.S. government suffers aggrievement, which allows it to appeal the case.
Associate Justice Antonin Scalia expressed displeasure with the Justice Department’s decision to stop defending the law and creating a situation in which it’s appealing a case that was decided in its favor.
“I don’t want these cases to come before this court all the time,” Scalia said.
It’s difficult to say if the court will rule on the basis of standing because justices challenged the views on whichever attorney was speaking — whether they were arguing in favor of standing or not. A ruling on the basis of standing would likely be more limited in its impact on gay couples as opposed to a nationwide ruling striking down DOMA.