Monthly Archives: March 2013

DOMA on Trial

Today the U.S. Supreme Court heard United States v. Windsor, a case questioning the constitutionality of the Defense of Marriage Act. Under that law (DOMA), marriage is defined as a union between one man and one woman for the purposes of federal benefits (healthcare, taxes, Social Security, etc.). This hearing was in some ways similar to yesterday’s on California’s Proposition 8, but in some ways different.

The main similarity is that there are serious doubts about whether the Supreme Court can and should rule. Yesterday it was wondered why the initiators of Proposition 8 were defending it, rather than the state of California, in which Prop 8 is law. Today the justices almost all marveled at the fact that DOMA is being defended by the Republicans of the House of Representatives, rather than the executive branch, which enforces laws.

U.S. v. Windsor arrived at the Supreme Court via a peculiar circumstance. The Obama administration chose not to defend DOMA in court, but it also chose to enforce DOMA in practice–in other words, it decided the law was unconstitutional but kept using it anyway. The justices, especially Chief Justice John Roberts, think this an extremely weird choice. What happened next is just as strange: in the lower courts, both U.S. and Windsor argued that the law was unconstitutional, and when the lower courts sided with U.S. and Windsor, the U.S. appealed to the Supreme Court even though it agreed.  Roberts says this is unprecedented.

This led to the Defense of Marriage Act case being broken down into two separate hearings.

Hearing One: Standing, or, Why Are We Even Arguing About This?

The justices are confused that they’ve been asked to rule on a case by a party that got the decision it wanted. The U.S. government technically lost and owes Windsor $360,000, but they’ve said they’ll pay it. They want the Supreme Court to affirm the previous decision so there will be no doubt.

Arguably, this would set a weird precedent. One or two justices are spooked by a hypothetical future where the U.S. wins big judicial cases and appeals to win the constitutional version of bonus points.

Another weird precedent could be set by the fact that the House of Representatives, specifically its Republican faction, stepped in to defend DOMA. That’s the executive branch’s job, except that the executive branch switched sides. The House Republicans, whose legal team goes by the amusing acronym BLAG, claim that they are able to defend the law. Anthony Kennedy, obviously weirded out, asks if the Senate Democrats could have fielded the gay rights legal team to make it House v. Senate, but apparently there’s precedent for the House to argue for laws it passed and no such precedent for the Senate. Kennedy also asks some hypotheticals: what if Obama supported DOMA, but his lawyers stunk; would the House intervene then?

The feds think they have standing to argue the case even though they appealed a verdict they won. The House (BLAG) thinks they have standing to argue the case because they wrote the bill seventeen years ago and the feds aren’t defending it.  Windsor thinks she has standing even though she was married in Canada. At least one justice is skeptical about each, and although much more knowledgeable commentators (say, Adam Liptak, New York Times) are optimistic, I’m fairly worried that U.S. v. Windsor may not withstand this scrutiny.

Hearing Two: The Actual Merits of DOMA, or, Seriously, Why Are We Arguing About This?

The BLAG argument here (I like typing BLAG) is that the Defense of Marriage Act simply provides a definition of marriage which the government can use to dispense benefits and exact burdens. According to the argument, writing a definition is not a discriminatory act, and is also not a government regulation. This is silly, of course; as the U.S. government argues, “This statute is not called the Federal Uniform Marriage Benefits Act; it’s called the Defense of Marriage Act. And the reason for that is because the statute is not directed at uniformity in the administration of Federal benefits.”

Both sides agree the states are still free to have different definitions of marriage–except BLAG says certain married people should be denied federal rights.

MR. CLEMENT: No State loses any benefits by recognizing same-sex marriage. Things stay the same. What they don’t do is they don’t sort of open up an additional class of beneficiaries under their State law for — that get additional Federal benefits. But things stay the same. And that’s why in this sense -­-
JUSTICE GINSBURG: They’re not a question of additional benefits. I mean, they touch every aspect of life. Your partner is sick. Social Security. I mean, it’s pervasive. It’s not as though, well, there’s this little Federal sphere and it’s only a tax question. It’s — it’s — as Justice Kennedy said, 1100 statutes, and it affects every area of life. And so he was really diminishing what the State has said is marriage. You’re saying, no, State said two kinds of marriage; the full marriage, and then this sort of skim milk marriage.
(Laughter.)
MR. CLEMENT: With respect, Justice Ginsburg, that’s not what the Federal Government is saying. The Federal Government is saying that within its own realm in Federal policies, where we assume that the Federal Government has the authority to define the terms that appear in their own statute, that in those areas, they are going to have their own definition. And that’s -­
JUSTICE KAGAN: Mr. Clement, for the most part and historically, the only uniformity that the Federal Government has pursued is that it’s uniformly recognized the marriages that are recognized by the State. So, this was a real difference in the uniformity that the Federal Government was pursuing. And it suggests that maybe something — maybe Congress had something different in mind than uniformity.

Justice Kagan’s last sentence is as loaded as a sentence can get unless it’s spoken by Antonin Scalia. What is it that Congress might have had in mind? Well, as Kagan points out, Congress actually came right out and said that the point of DOMA wasn’t to write a definition but, quote, “to express moral disapproval of homosexuality.”

When Kagan read that line out loud, the Congressional lawyer was surprised. His first reaction: “Does the House Report really say that?” He then admits that he’s not trying to defend the House’s motive, which is okay, because (as John Roberts wrote about Obamacare) the Supreme Court is free to interpret a law in a constitutional fashion if it also has an unconstitutional reading.

Elena Kagan very smartly invoked (“historically…the Federal Government has…uniformly recognized the marriages that are recognized by the State”) one of swing voter Anthony Kennedy’s favorite projects: states’ rights. Kennedy and even John Roberts dislike that the DOMA discrimination applies to both states that ban gay marriage and states that allow it. Windsor’s lawyer realizes that the conservative justices are all interested in limiting federal power and, on the fly, changes her argument entirely to appeal specifically to that interest (“the Federal Government doesn’t give marriage licenses,” she says, twice).

The Likely Outcome

If the Supremes decide that they have the ability to rule in this case–and that’s, I’m afraid, a pretty serious if–they will almost certainly uphold the earlier decision ending DOMA and allowing all married couples access to federal benefits. (Please note that this wouldn’t end any gay marriage bans.)

I say this for two reasons. First, Anthony Kennedy seems to have made up his mind; he is gravely concerned by the fact that DOMA interferes with a state’s right to define marriage. DOMA works just fine with states that also selectively ban marriage, but it imposes on the others. Elena Kagan nudges Kennedy a number of times, emphasizing this aspect of the case. If Kennedy wants to protect states’ rights, or keep helping gay causes, that’s a 5-4 decision right there.

But there’s a surprise. Despite naked contempt for politicians jumping on the gay rights bandwagon, John Roberts asks numerous questions about the limits of federal power over states, so he may agree with Kennedy that getting rid of a federal definition of marriage is a conservative issue. He gets a gay rights advocate to admit that if the government offered federal benefits to gay couples where they’re banned from marrying, that would possibly be unconstitutional too.

Even Samuel Alito isn’t all that unreasonable. He asks why the federal government has to use the word “marriage” anyway, suggesting “certified domestic units,” the idea being that DOMA dies if the IRS and benefits administrators just stop using the word “marriage.”

And Alito asks a very humane question when Obama’s representative (Donald Verrilli, who also starred yesterday) contends the case against DOMA:

JUSTICE ALITO: So let’s say three soldiers are injured and they are all in same-sex relationships, and in each instance the other partner in this relationship wants to visit the soldier in a hospital. First is a spouse in a State that allows same-sex marriage, the second is a domestic partner in a State that allows that but not same-sex marriage, the third is in an equally committed loving relationship in a State that doesn’t involve either. Now, your argument is that under Federal law the first would be admitted, should be admitted, but the other two would be kept out?

Don’t make the mistake of assuming Alito loves gay soldiers. Instead think about it. That is the government’s argument, and it will probably be Kagan’s and Kennedy’s. It might be Roberts’. So we have a long way to go.

Oh, and Scalia’s still an asshole.

MS. KAPLAN: As long as the people were validly married under State law, and met the requirements of State law to get married -­
JUSTICE SCALIA: No, no, no, no.

My Best Guess

If the Supremes don’t have standing to hear this appeal, I don’t know what happens. But if they do, this is a pretty easy call. I’m not just saying that because I think DOMA is despicable; I’m saying that because, for very different motives, five justices appear prepared to strike the law down. If the conservatives are most interested in limiting federal power over states, there might be more than one swing vote. And there’s another thing, this speech by Donald Verrilli:

GENERAL VERRILLI: Whatever the explanation, whether it’s animus, whether it’s that more subtle, more unthinking, more reflective kind of discrimination, Section 3 is discrimination. And I think it’s time for the Court to recognize that this discrimination, excluding lawfully married gay and lesbian couples from Federal benefits, cannot be reconciled with our fundamental commitment to equal treatment under law. This is discrimination in its most very basic aspect.

Nobody interrupted him.

P.S. My 100th blog post!

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Proposition 8 on Trial

Today the U.S. Supreme Court heard arguments for and against Proposition 8, the California constitutional amendment which bans gay marriage in that state. It also heard a compromise argument from the U.S. government. I read a transcript of the whole discussion and was fascinated.

General Thoughts on Reading Supreme Court Arguments

First of all, everybody who speaks is deeply intelligent. No matter what you think of the two sides in the gay marriage argument, you have to be impressed by the preparation, quick-thinking logic, and clear rhetoric of everybody involved. The transcripts preserve every stutter, so you notice how few of them there are. Some justices (like Samuel Alito) can deliver entire speeches as if memorized. There’s only one slip-up in all the eighty pages, when the Proposition 8 attorney (that is, the attorney who supports the gay marriage ban) forgets a precedent case and Ruth Bader Ginsburg has to explain it.

MR. COOPER: It’s — yes, Your Honor. And well, forgive me, Your Honor. I’m not sure I’m following the Court’s question.
JUSTICE GINSBURG: I may — my memory may be wrong, but…

Of course, her memory’s correct, or if it’s wrong, she’s not corrected.

There’s another thing. These people interrupt each other constantly. It’s standard procedure; justices even interrupt other justices.

The People

Charles J. Cooper. Defending Proposition 8, Cooper’s main argument is that the government can regulate marriage, and who can get married, because it’s in society’s interest to manage procreation, and marriage is essential to procreation. At one point he even says that society “has an interest of [sic] seeing any heterosexual couple that intends to engage in a prolonged period of cohabitation to reserve that until they have made a marital commitment.”

Nobody asks him if this means that states could ban unmarried cohabitation, but Justice Ginsburg points out a previous ruling that established the right of life-without-parole prisoners to marry non-prisoners with whom they’ll never have a chance to procreate. Elena Kagan argues that barring gays from marrying because they can’t procreate would also endanger the marital rights of senior citizens, but this gets bogged down in a debate over how often old people have babies.

The wind comes out of Cooper’s sails immediately, when he begins this way:

MR. COOPER: New York’s highest court, in a case similar to this one, remarked that until quite recently, it was an accepted truth for almost everyone who ever lived in any society in which marriage existed -­
CHIEF JUSTICE ROBERTS: Mr. Cooper, we have jurisdictional and merits issues here. Maybe it’d be best if you could begin with the standing issue.

Translated into non-lawyer: “The traditional definition of marriage everywhere is…” “We don’t care.”

Theodore Olson. The attorney hoping to strike down Proposition 8 shows an easy familiarity with the Supreme Court setting, probably because he was solicitor general under George W. Bush. He’s still a conservative, by the way, but at one critical juncture buckles under attack from Antonin Scalia.

Donald Verrilli. The current Solicitor General makes an argument which Justice Sonia Sotomayor calls ironic. Basically, it’s this: if a state gives gay couples full rights (tax benefits, health benefits, adoption rights, etc.) but offers civil unions instead of marriages, as in California, this is a “separate but equal” scheme like segregated schools, and unconstitutional. But if a state gives gay couples no rights, let alone marriage, it’s “separate and unequal.” He constantly refuses to say whether that’s constitutional.

The result is that, awkwardly, California’s granting of all rights except marriage to gay people makes it unconstitutional, but other states can keep banning gay marriage as long as they’re also banning gay adoptions. Verrilli does indicate that the government would probably side against that, but that a new court case would be needed, with new arguments.

Antonin Scalia. Aggressive, rambunctious, and caustically funny, Scalia often goes on bizarre rants. When Cooper can’t come up with any good reasons to keep gays from marrying, Scalia steps in to help him out. He gets in a sarcastic reference to Roe v. Wade‘s establishment of a right to privacy. He grills Olson on when, exactly, gay marriage bans became unconstitutional, demanding a day and time.

JUSTICE SCALIA: When did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted?
MR. OLSON: When — may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?
JUSTICE SCALIA: It’s an easy question, I think, for that one. At — at the time that the Equal Protection Clause was adopted. That’s absolutely true. But don’t give me a question to my question.
(Laughter.)
MR. OLSON: It was constitutional when we -­ as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that –
JUSTICE SCALIA: I see. When did that happen? When did that happen?
MR. OLSON: There’s no specific date in time.

As I’m sure you’ll notice, Olson’s rather inspiring rhetorical question was deflated down to a sad little squib. Not surprising, since Antonin Scalia’s views on gay rights are well-known.

Another, better rhetorical question came from…

Anthony Kennedy.

JUSTICE KENNEDY: …there is an immediate legal injury or legal — what could be a legal injury, and that’s the voice of these children. There are some 40,000 children in California, according to the Red Brief, that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don’t you think?

Kennedy seems inclined to rule on California’s Proposition 8 without extending the ruling to apply to the United States as a whole.

John Roberts. The Chief Justice is by far the politest, kindliest justice; sometimes he even apologizes when he interrupts. Roberts is alarmed by the possibility of banning gay marriage bans across all 50 states, and asks Verrilli a lot of questions which seem designed to give him the logic needed to strike a compromise decision killing Proposition 8 but maintaining the national status quo. As a conservative, Roberts might like this outcome: it solves the issue at hand in a humane way (he’s concerned about the adopted kids, as Kennedy is) while retaining the states’ power to come up with their own solutions.

Clarence Thomas. As always, Clarence Thomas is silent.

The Themes

The Proposition 8 supporters contend that the government has an interest in legislating matters related to procreation, such as the right of non-procreating couples to obtain marriage licenses. This is frankly ludicrous, and the liberal justices are highly skeptical.  Opponents argue that this is an equal rights issue, which comes under fire in two ways: first, concerns about whether the California case is applicable to the whole country, and second, Scalia’s stuff about what exact date gay marriage bans became unconstitutional. There’s some concern about the fact that the Ninth Circuit Court’s ruling, striking down Prop 8, is hardly cited at all by the team that’s supposed to be agreeing with it.

The U.S. government’s proposed compromise, that Proposition 8 be kept down and gay marriages be allowed in California but other states remain free to experiment, seems tailor-made to appeal to John Roberts.

There is considerable debate over whether the proponents of Prop 8 should even be allowed to argue for it, since they’re private citizens, and several justices wonder why the heck California won’t show up to defend its own constitution.

The Likely Outcome

Anthony Kennedy sympathizes with the gay rights cause. He speaks up for the adopted kids and he throws a blanket on Scalia’s fearmongering suggestion that gay parents are bad at raising children. At one point he even traps Charles Cooper in a corner where Cooper looks to be admitting that straight couples would be unharmed by an expansion of marriage; Cooper’s reply is feeble, that there are unknown consequences to gay people getting married.

John Roberts is harder to make out. He seems less worried about gay rights and more about the national consequences of a Proposition 8 decision. I get the impression that he is trying to see what compromise tightrope can be walked–like the one he found on Obamacare.

The case could be thrown away on the technicality that the pro-Prop 8 legal team isn’t qualified to defend it, but there was a similar technicality brushed off in the Obamacare decision because the justices wanted to issue a clear ruling. There’s evidence here that they feel similarly.

My Best Guess

I’ll guess that the Court decides, 6-3, to let the Ninth Circuit decision stand, overturning Proposition 8. John Roberts or Anthony Kennedy will write a narrow opinion explaining the idea: that, in some form, the Court accepts Verrilli’s argument that California’s ban can be overturned without national implications. Thus civil unions will become marriages in California, but that doesn’t mean gay people can run out to get married in Texas just yet.

In a concurring opinion, somebody will urge a case from a state like Texas to come before the court to really answer the question once and for all. Even Antonin Scalia wants this issue cleared up. Cooper suggests that the Court let the American public debate gay marriage longer before deciding its merits, and Scalia retorts:

JUSTICE SCALIA: It’s too late for that, too late for that now, isn’t it? … “We should let it percolate for another -­-” you know, we — we have crossed that river, I think.

Hey, I agree.

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