March 27, 2013
By Jacob Combs
Part One: first impressions
I just got out of the Supreme Court’s press gallery, where we heard two packed hours of oral arguments on the constitutionality of Section 3 of the Defense of Marriage Act. A big first impression: it seems quite likely that Section 3 of DOMA will be struck down by the Supreme Court. But the Court may not get to that decision the way observers might have expected, and there remains a chance it doesn’t get to that question at all. Today’s oral arguments felt like a marathon: we had a brief break between the jurisdictional and merits questions (and by brief, I mean brief) and other than that it was over two hours of solid legal back-and-forth. Like yesterday, the arguments were wonky and didn’t include any fireworks.
The jurisdictional/standing arguments made it clear that there is skepticism on the Court as to whether the Bipartisan Legal Advisory Group has standing to defend DOMA in court, but there is also uncertainty about the idea that the federal government should be able to appeal a lower court decision that it agrees with. Chief Justice Roberts, for instance, asked why President Obama has not simply ceased to enforce DOMA as opposed to continuing to enforce it and instead attacking it in court. At one point, he told Deputy Solicitor General Sri Srinivasan (arguing on behalf of the federal government) that recognizing jurisdiction in this case–where all parties agree with the lower court’s decision–would be “wholly unprecedented.”
Justice Kennedy, however, did seem convinced that there was an injury present in the case, as did Justice Kagan, who said, simply, that there’s “a lot of money” at stake in the case. Roberts also opened up his own argument a bit, asking if a house of Congress of could move to join a lawsuit if it simply didn’t agree with the government’s arguments in favor of a law it had passed. Several Justices questioned Paul Clement (speaking on behalf of BLAG) as to why just the 5-member body could throw the full weight of the House behind DOMA, and pointed out that a full House vote would be more persuasive. Justice Kennedy asked if the Senate could intervene on the other side of the case, which Clement said it could not.
On the merits of the case, the Justices spent a significant amount of today’s argument time questioning all parties on whether DOMA was an unconstitutional intrusion of the federal government into an area traditionally reserved to state law. For instance, when Solicitor General Donald Verrilli, Jr. stepped up to represent the federal government’s position, the Justices grilled him on this issue and seemed very skeptical of his claim that there is no federalism problem inherent in DOMA.
Justice Kennedy in particular pointed out that DOMA affects over 1000 federal rights, and told Clement that he was at “real risk of running in conflict” with the state police power to regulate marriage. Justice Sotomayor critiqued Clement’s argument that DOMA could be defended as an expression of the federal government’s wish that marital eligibility be uniform for the purposes of federal law, saying that doing so would treat couples in New York differently from those in Nebraska. Justice Breyer asked whether Congress could limit federal marital benefits based on age or residency, and when Clement said that it could, the Justice said that doing so would be thoroughly irrational.
Nevertheless, there appeared to be at least five clear votes on the Court for invalidating DOMA, either on issues of federal overreach or on equal protection grounds. On the latter issue, the Court spent some time–but not much–discussing whether laws that classify based on sexual orientation should be subject to the more searching judicial review of heightened scrutiny. Justice Kagan in particular questioned whether or not Congress might have had other motives in passing DOMA besides uniformity; Justice Sotomayor quoted the House record from when the law was enacted, which stated that the law was intended to “express moral disapproval of homosexuality.” But Chief Justice Roberts asked both Verrilli and Kaplan if the legislators who voted in favor of DOMA could be explicitly accused of animus, which both lawyers disavowed. Breyer pressed Clement for a “list of reasons” why Congress would want to limit federal marital benefits to opposite-sex couples only.
From today’s arguments, it does seem that DOMA is on its last legs and that the Supreme Court will likely strike it down this summer if it decides Edie Windsor’s case on the merits. But there are many complex arguments on the standing/jurisdiction questions that the Justices will have to address in their decision. We’ll have more in-depth analysis at EqualityOnTrial.com today on the specific issues in the case–check back later for more coverage!