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!