Wednesday, March 27, 2013
Majority of Justices Skeptical of DOMA
A majority of Supreme Court justices appeared ready on Wednesday, barring a jurisdictional hurdle, to strike down the federal Defense of Marriage Act (DOMA) provision that bars federal benefits to legally married same-sex couples.   Four liberal justices all indicated likely agreement with the Obama administration’s position that the law amounts to unconstitutional discrimination against same-sex couples. Justice Anthony M. Kennedy, who often holds the balance of power between the court’s conservative and liberal blocs, signaled his concern that the law intrudes on the states’ traditional prerogatives to define marriage.   “You are at real risk of running in conflict with what has always been thought to be the essence of the state police power, which is to regulate marriage, divorce, custody,” Kennedy said to Paul Clement, a former U.S. solicitor general retained by House Republicans to defend the law. Kennedy said the law meant the federal government was “intertwined” with people’s daily lives.   Earlier, Clement had faced a sharp question from the court’s senior liberal, Ruth Bader Ginsburg, who listed some of the federal benefits unavailable to married same-sex couples under the 1996 law. “For the federal government to come in to say no joint return, no marital deduction, no Social Security benefits; your spouse is very sick but you can’t get leave,” Ginsburg said, “one might well ask, what kind of marriage is this?” Later, Ginsburg said the law created two kinds of unions: “full marriage and then this sort of skim-milk marriage.”   The exchanges over DOMA’s impact came only after a preliminary 50-minute round of arguments over whether the issue was properly before the court at all given the Obama administration’s refusal to defend the law. President Obama decided in February 2011 to stop defending the law in court but to continue enforcing it. In the case before the court, United States v. Windsor, a lesbian New York City widow, Edith Windsor, won two lower court decisions entitling her to a refund of $363,000 she paid in federal estate taxes; the survivor of an opposite-sex marriage inherits his or her spouse’s estate tax-free.   The court appointed Vicki Jackson, a Harvard law professor, to argue that it had no jurisdiction over the case because the government agreed with Windsor that the law was unconstitutional. Jackson was also asked to argue that the House of Representatives’ Bipartisan Legal Advisory Group (BLAG) had no standing to come into the case to defend the law.   Both Chief Justice John G. Roberts Jr. and fellow conservative Justice Antonin Scalia used the jurisdictional argument to tweak Obama and his administration for its stance in the case. “I don’t see why he doesn’t have the courage of his convictions,” Roberts said of Obama’s decision to continue enforcing the law while attacking it in court. Scalia said the administration was disregarding the executive branch’s customary obligation to defend laws in court. “If we’re in this new world,” Scalia said, “I don’t want these cases to come before this court all the time.”   Representing the administration, deputy solicitor general Sri Srinivasan defended Obama’s decision. “The president made an accountable legal determination that this act of Congress was unconstitutional,” he said. In his turn, Clement insisted that there was “nothing objectionable” in allowing the House to appear in court to defend the law after the administration’s shift.   Turning to the merits, Clement began by depicting the legal issue on DOMA as “quite narrow” despite the “deeply held” views pro and con on gay marriage. “Basic principles of federalism” allows the federal government to define marriage “solely for purposes of federal law,” Clement said.   Repeatedly during his half-hour presentation, Clement stressed the need for “uniformity” in federal law. He made no reference to substantive arguments made in his brief for discouraging same-sex marriage, such as channeling procreation and child-rearing into opposite-sex marriages.   Liberals Sotomayor and Stephen G. Breyer both questioned the uniformity supposedly advanced by DOMA. “You are saying New York’s married couples are different than Nebraska’s,” Sotomayor said. New York is one of nine states along with the District of Columbia that license same-sex marriages.   Fellow liberal Elena Kagan also criticized the uniformity argument but then quoted from the House committee report on DOMA, saying the bill was enacted “to express moral disapproval of homosexuality.” Clement disavowed the purpose. “The House Report says some things that we are not, we've never invoked in trying to defend the statute,” Clement said.   Solicitor General Donald Verrilli, representing the administration, and New York City attorney Roberta Kaplan, representing Windsor, forcefully denounced DOMA as discriminating against gays and lesbians. “What section 3 does is exclude from an array of federal benefits lawfully married couples,” Verrilli said. Later, Verrilli rejected Clement’s arguments that DOMA was enacted “for any purpose of uniformity, administration, caution, pausing, any of that.”   In her turn, Kaplan said that “many thousands” of legally married couples are being treated as unmarried by the federal government “solely because they are gay.” But she faced questions from Roberts and Scalia aimed at leaving the issue s to the political process. “As far as I can tell, political figures are falling over themselves to endorse your side of the case,” Roberts said.   Kaplan saw the history of the issue differently. “No other group in recent history has been subjected to popular referenda to take away rights that have already been given or exclude those rights, the way gay people have,” she said.   If the court followed its usual procedure, the justices spent Wednesday afternoon in private conference considering the gay-marriage case argued on Tuesday: the constitutional challenge to California’s Proposition 8, Hollingsworth v. Perry. They will conference on the DOMA case on Friday. Decisions in both cases are due by the end of June, and probably not sooner.