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Topics In the News
DOMA's Day in Court
Posted by: Claude J. Summers on 03/27/13
Last updated on: 03/28/13
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Edith Windsor.

The Defense of Marriage Act (DOMA) went on trial at the U.S. Supreme Court on March 27, 2013. After abstruse arguments regarding standing and the Obama adminstration's decision not to defend the law, which was enacted in 1996, the Justices finally turned their attention to the merits of the case brought by 83-year-old widow Edith Windsor, who received a tax bill for $363,000 when her spouse Thea Spyer died in 2009. It is likely that DOMA will be declared unconstitutional by the Court's majority on both equal rights and Tenth Amendment grounds.

As Adam Liptak and Peter Baker report in the New York Times, "The Supreme Court appeared ready on Wednesday to strike down a central part of a federal law that defines marriage as the union of a man and a woman as a majority of the justices expressed reservations about the Defense of Marriage Act on the second day of intense arguments over the volatile issue of same-sex marriage."

Almost half of the oral arguments were given over to complex questions of jurisdiction. At issue was whether the Bipartisan Legal Advisory Group (BLAG) of the U.S. House of Representatives had standing to defend the law when the Department of Justice declined to do so and whether the U.S. had standing to appeal a ruling by an appellate court that agreed with its arguments.

From the tenor of the questions asked by the Justices, it is likely that the Court will rule that BLAG lacked standing, while holding that the U.S. does have standing to appeal.

Some of the conservative Justices asked why President Obama did not simply cease to enforce DOMA instead of attacking it in court. Chief Justice Roberts said, "I don't see why he [Obama] doesn't have the courage of his convictions" and not enforce the law if he thinks it is unconstitutional.

In such a statement, Roberts is simply grandstanding. One can only imagine the kind of outrage that Obama would have provoked in the right-wing blogosphere had he refused to enforce DOMA. Moreover, for the President to stake out such a position would have flouted the prerogative of the Supreme Court itself, which has the responsibility of ruling on whether laws are constitutional or not, a responsibility that the conservative members of the Court seek to evade, at least when the civil rights of glbtq people are involved.

When the hearing turned to the merits of the case, it became clear that the liberal Justices are prepared to find DOMA unconstitutional because it was adopted out of animus and because it impermissibly discriminates against same-sex couples.

In the most memorable quip from the hearing, Justice Ginsburg said DOMA created "two kinds of marriage: the full marriage, and then this sort of skim milk marriage."

When BLAG attorney Paul Clement defended the law as Congress's attempt to create a uniform standard for awarding benefits and burdens of marriage, Justice Kagan interrupted him and said something else was at work. "Do we really think Congress was doing this for uniformity reasons or do we think the Congress's judgment was infected by dislike, by animus, by fear?" she asked. She read a quote from the House record at the time the law was passed suggesting that lawmakers wanted to show "moral disapproval of homosexuality."

Clement responded: "Of course the House report says that. I think if that's enough to invalidate the statute you should invalidate the statute. But that's never been enough." He said that "just because a couple legislators may have had an improper motive" did not mean there was not a legitimate purpose to the law.

Ms. Windsor's attorney, Roberta A. Kaplan, kept her argument focused on DOMA's violation of equal protection, as did Solicitor General Verilli, who also argued for heightened scrutiny in considering the case, a standard that the Chief Justice seemed to resist at the end of the hearing when he attempted to refute Kaplan's assertion that gay people lacked political power. Roberts's hectoring of Kaplan on this issue seemed indecorous and more akin to the antics of Scalia than to the usually courteous Chief Justice.

The four liberal Justices seem inclined to strike down DOMA on equal protection grounds, but Justice Kennedy returned again and again to the theme that deciding who is married is a matter for the states. The federal government, he said, should respect "the historic commitment of marriage and questions of the rights of children to the states."

Federalism was also a theme that was invoked by Chief Justice Roberts and Justice Alito as well. It may be that a decision will be crafted that strikes down DOMA on both equal protection and federalist grounds.

The real question is the scope of the decision that will result from such an alliance. Will it make a strong declaration of the rights of married gay and lesbian couples? Will it create a level of scrutiny that lower courts need to follow in considerations of laws that make classifications on the basis of sexual orientation? Will it advance the principle of equal justice under the law?

In the video below, Roberta Kaplan and other members of the Windsor team speak following the oral arguments on March 27, 2013.

Edie Windsor speaks following the oral arguments at the Supreme Court.

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