March 27, 2013
By Jacob Combs
I’m writing this from the press room inside the Supreme Court a little more than an hour before oral arguments will begin in Edie Windsor’s challenge of Section 3 of the Defense of Marriage Act. It’s still busy here today with many reporters milling around (I’m writing this standing up, with my laptop perched on a windowsill!), but it is markedly less frenetic today than yesterday. The view from outside the Court was similar–yesterday, the sidewalk in front of the courthouse and across the street were thronged with demonstrators. There are still a lot of people out there, but less so than yesterday.
But that doesn’t mean today’s case is any less important than the Prop 8 case! Today’s hearing will be twice as long as yesterday’s, with the first fifty minutes devoted to questions of jurisdiction (whether the Bipartisan Legal Advisory Group of the U.S. House of Representatives has standing to defend DOMA and whether the Supreme Court has jurisdiction to hear the Windsor case when Edie Windsor and the federal government both agree that DOMA is unconstitutional). The second half of the arguments will consist of an hour of discussion of the case on the merits.
Yesterday’s hearing was very wonky and procedurally oriented: the Justices spent a significant amount of time talking about issues of standing, and even once we got to the merits, we stayed in the weeds of legalese. What surprised me yesterday was that there was very little discussion of what level of scrutiny should be applied to laws that affect gays and lesbians: whether they should be viewed under the more deferential rational basis standard or the more searching heightened scrutiny standards. Part of this issue has to do with whether or not gays and lesbians are a ‘suspect class': one based upon an immutable characteristic that has suffered discrimination and the whims of majoritarian opinion.
The relative lack of scrutiny questions yesterday could well be due to the fact that the Court knows it will have to address scrutiny during today’s arguments. In fact, the fate of DOMA may rest entirely on the level of scrutiny under which it is reviewed, since the federal government and BLAG both argue it can survive rational basis scrutiny. (Windsor argues it must fail any level of scrutiny, the federal government believes it fails heightened scrutiny, and BLAG says the law can survive any level of scrutiny.)
We apologize for the relative scarcity of posts yesterday–it was a complicated day in terms of trying to get into the Court. It looks like we have a better shot of getting Scottie and Adam in today so that we’ll have three sets of eyes and ears on today’s arguments. If they get in, we’ll all be under radio silence during arguments until noon or 12:30 Eastern. After that, we’ll start tweeting our initial reactions (on our personal handles and at @equalityontrial) and we’ll have a shorter first impressions post up within the hour after arguments end. We’ll then have several more in depth pieces later today focusing on specific aspects of today’s questions.
Here’s to day two being as exciting as day one!