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DOMA trials: A summary of the Second Circuit’s hearing in Windsor v. USA

DOMA trials Windsor

By Jacob Combs

I just returned from the Second Circuit Court of Appeals in Manhattan, where a 3-judge panel heard oral arguments in the appeal of the DOMA case Windsor v. USA.  In June, New York District Court Judge Barbara Jones declared DOMA unconstitutional and ordered Edie be refunded the $363,000 in estate tax she paid upon the death of her wife, Thea Spyer.  Windsor’s attorneys appealed the case directly to the Supreme Court, but BLAG, the legal group representing the House of Representatives and defending the law, asked the Second Circuit to take up the case.  The 3-judge panel who heard oral arguments today was comprised of Chief Judge Dennis Jacobs, a George H.W. Bush appointee, Judge Chester Straub, a Bill Clinton appointee, and Judge Christopher Droney, an appointee of President Barack Obama.

First up to argue on behalf of BLAG was Paul Clement, the super-star conservative attorney who argued against the Affordable Care Act at the Supreme Court and defended DOMA when it was considered by the First Circuit Court of Appeals.  Clement began with a brief overview of DOMA’s legislative history, claiming that Section 2 of the law, which allows states to refuse to recognize marriages given to gay couples in other states, was passed to protect each state’s decision to decide what public policy to pursue on marriage equality.  In addition, Clement argued that Section 3, the part of DOMA which limits federal recognition of marriage to heterosexual couples only and is at issue in the Windsor case, was passed so that Congress could reserve the traditional definition of marriage for the purposes of federal law.

Since Edie Windsor and her wife were wed in Canada before New York had marriage equality, Clement also brought up the issue of Edie Windsor’s standing in the DOMA suit, asserting that the Second Circuit should certify a question to the New York Court of Appeals (a state court) asking whether Windsor’s marriage is valid under New York law.  The judges seemed quite skeptical of this argument, with Chief Judge Jacobs pointing out that the Court of Appeals had already considered the same legal questions in previous lawsuits.

Not surprisingly, Clement pointed to the Supreme Court’s 1972 decision in Baker v. Nelson, in which the Court dismissed a suit brought by a Minnesota gay couple seeking a marriage license, as an impediment to the Windsor case.  Because of Supreme Court precedent at the time, Baker stands as a binding precedent on lower courts.  While Chief Judge Jacobs noted that such precedent is limited only to the “precise facts” of the case, Clement argued that the precedent of Baker should apply to the legal issue of marriage equality in general as opposed to the specific facts presented in the 1972 case.

In passing DOMA, Clement argued this morning, Congress didn’t do anything to affect state law when it came to marriage equality; rather, it only affected state law by choosing to maintain a traditional definition of marriage.  Judge Straub asked Clement if he could present a Supreme Court opinion that lays out this so-called ‘traditional definition’ of marriage, and Clement pointed to that the Supreme Court case Murphy v. Ramsey.  Judge Straub pointed out that Murphy was decided in 1885, to which Clement responded, intriguingly, that all references in prior Supreme Court decisions to marriage were either neutral or specifically heterosexual because the court was writing in a day and age when that was all anybody knew.

Clement and the panel then turned to the question of the proper level of judicial scrutiny to apply to gays and lesbians–that is, whether gays and lesbians merit special protection by the courts when it comes to laws that affect them.  Clement argued that gay Americans are not politically powerless because they can seek change through legislative means (for example, when the New York legislature legalized marriage equality).  Chief Judge Jacobs pointed out that women can do so as well, but are afforded intermediate scrutiny, to which Clement offered the novel response that a true test of political powerlessness is whether or not a group has ever been denied the franchise.  Because African-Americans and women were denied the right to vote, he argued, they were considered by the courts to be politically powerless.  In making this argument, Clement asserted that the courts should not take marriage equality “off the table” by providing gays and lesbians intermediate scrutiny, but should rather leave it up to the legislature to decide.

Judge Droney asked Clement whether DOMA should be considered under the so-called ‘rational basis with bite’ test, but Clement argued in response that there is no Supreme Court precedent for such a test.  Judge Droney then asked Clement to defend DOMA under the intermediate scrutiny test, which Clement responded to by pointing out Justice O’Connor’s concurrence in the Supreme Court case of Lawrence v. Texas, which noted that there is an important governmental interest in preserving tradition marriage.  Clement recognized that his argument was “circular,” but asserted that this was the very nature of a definition.  Judge Droney pointed out that it was Justice O’Connor’s concurrence that established the idea of the ‘rational basis with teeth’ test, but Clement responded that her opinion does not represent a majority view of the Supreme Court and should not be used by lower courts.

Next up was Roberta Kaplan, Edie Windsor’s attorney.  Kaplan told the court that her client’s position was that DOMA should be considered under the most deferential strict scrutiny test since it narrowly defines a group and broadly affects that group’s rights, but noted that the law would not pass rational basis test since it created a one-time exception to the nation’s marriage laws that only affects gay people.  Chief Judge Jacobs asked Kaplan about the money issue, and wondered why Congress couldn’t simply decide to save money by withholding marriage from gays and lesbians.  Kaplan replied that a desire to save money had to be connected to another legitimate interest to pass constitutional muster, and when pressed by Judge Straub, she acknowledged the law would pass if some additional interest could be articulated.

When asked by Chief Judge Jacobs about the issue of Baker, Kaplan replied that it is the states who control marriage law, and that Edie Windsor’s case is not about a right to marriage, but whether gay couples who are duly married can be denied federal benefits.  For this reason, she argued, the case is completely distinct from Baker.  When asked by Judge Droney why Kaplan was arguing for strict scrutiny as opposed to intermediate scrutiny, Kaplan responded that, in her opinion, being gay should be seen in the eyes of the law as more similar to race than gender.  Women have physical differences from men, she told the court, that allow for the argument that they have a different ability to contribute to society.  Sexual orientation, like race, exhibits no such distinctions.

Chief Judge Jacobs brought up the issue of federalism, asking Kaplan why he shouldn’t accept BLAG’s argument that the states decide who to marry and Congress sets a federal definition.  Kaplan replied that in the entire history of the American republic, Congress has always deferred to state definitions of marriage, even on laws that would be odious to us today (such as laws prohibiting interracial marriage).  Judge Straub asked why a ruling in the Windsor case that the denial of federal benefits to gays and lesbians was unconstitutional would not necessitate extending that ruling to hold that the denial of state benefits is similarly unconstitutional.  Kaplan noted that the same principles present in the Windsor case would apply, but that each state’s public policy pertaining to gay and lesbian individuals is distinct, and that any further litigation on that point would not have to use a Windsor decision as precedent.

Stuart Delery, Acting Assistant Attorney General for the Civil Division, was up next, representing the federal government.  Chief Judge Jacobs and Delery briefly discussed the legal peculiarity that the United States was appealing the district court decision even though it agrees with the outcome and then proceeded, once again, to the issue of scrutiny.  Delery’s arguments resembled Kaplan’s, and he specifically noted the federal government’s part in the history of discrimination against gay and lesbian Americans.

Interestingly, however, Delery was asked by Judge Droney whether the federal government believed that DOMA should be considered under intermediate scrutiny or under strict scrutiny.  (The government had told the court in its brief that it concluded gays and lesbians merited heightened–that is, more than rational basis–scrutiny.)  Delery stated that the position of the federal government is that gays and lesbians should be considered under something more than simple rational basis review, but that the United States has no position on whether such scrutiny should specifically be intermediate or strict scrutiny.

Chief Judge Jacobs pointed out that Delery and the federal government’s argument that gays are politically powerless is undermined by the very fact that the Acting Assistant Attorney General was present in court arguing against DOMA.  Delery responded that political powerlessness is not an all or nothing proposition, and that gays still commonly lose when their rights are put up to a popular vote.  Judge Straub asked Delery why the government had decided to cease defending DOMA (which it had done until early 2011), to which Delery replied that the Justice Department, along with the President and the Attorney General, had reached a new conclusion on the level of proper scrutiny they believed sexual orientation deserved, which prompted a change in the evaluation of DOMA’s constitutionality.

Judge Straub asked Delery which government interest advanced by BLAG would uphold the law should the court resort to using rational basis scrutiny.  Delery made it clear that while the federal government does believe that rational reasons for DOMA exist, it does not believe such reasons should prevail in court.  Pressed by Judge Straub, however, Delery pointed to the maintenance of the status quo, a desire for uniformity in federal benefits and the decision to let the states decide for themselves how to proceed on marriage equality.

On rebuttal, Clement told the court that it is inaccurate to say that Congress has never defined marriage, since it sometimes overrides state definitions of marriage in specific contexts.  In addition, he argued that before DOMA was passed in 1996, Congress could defer to state definitions and ensure uniformity all at once, since no state allowed same-sex couples to marry.  In passing DOMA, he argued, Congress opted for uniformity over deference in the future.

At a press conference after the hearing attended by Edie Windsor and the plaintiffs in another DOMA case out of Connecticut called Pedersen v. OPM (which will also be before the Second Circuit and has been appealed to the Supreme Court), Windsor responded to a reporter’s question about how she felt being the public face against DOMA by saying, “I love it.”  We were on a busy New York street and the press had to crowd around her because Edie talked at a fairly low level, but the words she spoke were a moving testament to just what the case means to her.  Beating DOMA, she told us, would be “the beginning of the end of stigma, the beginning of the end of suicides.”  It would make a difference to gay kids and gay teens all across America who found themselves falling in love for the first time.  If the Supreme Court hears her case, Windsor said, she hopes to be there–and also, she added wryly, she hopes she’ll still be alive.

It will likely be several months before the Second Circuit issues a ruling in Edie’s case.  In the meantime, the Supreme Court could choose to take up her appeal, which would most likely result in a stay on the case at the circuit court level.  As always, we’ll cover any development that takes place.  Feel free to ask me any questions about today’s arguments you might have in the comments, and I’ll do my best to answer them!


  • 1. jpmassar  |  September 27, 2012 at 10:43 am

    Great writeup!

  • 2. Matt N  |  September 27, 2012 at 10:48 am

    "In addition, [Clement] said that before DOMA was passed in 1996, Congress could defer to state definitions and ensure uniformity all at once, since no state allowed same-sex couples to marry. "

    Oh really.. So all states had exactly the same age limits and 'incest' restrictions in 1996? That's blatantly false. There were many different definitions in 1996. Clement is just picking on the gender differences and ignoring the others.

  • 3. sfbob  |  September 27, 2012 at 10:58 am

    Of course. And before 1967, no states permitted interracial marriages…oh wait…some states did and some didn't and the federal government's decision as to whether to recognize such marriages was state-based. Clement, as usual, is making superficial arguments, hoping nobody notices the facts don't support him.

  • 4. Jacob Combs  |  September 27, 2012 at 1:16 pm

    I thought the same thing when I was there today. He's definitely just cherry-picking the so-called 'uniformity' that supports his argument and ignoring the many different definitions that existed among the states. That's exactly the argument that our side is making–Congress abides by different state distinctions on marriage on everything BUT sexual orientation.

  • 5. Kathleen  |  September 27, 2012 at 11:16 am

    Really great report, Jacob. Thank you so much for being the eyes and ears of all of us who wish we could have been there!

    A question: Was Clement the only attorney who reserved time for rebuttal? If not, what did the other attorneys use their rebuttal time to say?

    A comment: You wrote, "(The government had told the court in its brief that it concluded gays and lesbians merited heightened–that is, intermediate–scrutiny.)"

    It's not the case that heightened scrutiny = intermediate scrutiny. Heightened scrutiny is a term used to encompass any level of scrutiny higher than rational basis, i.e., heightened scrutiny encompasses both intermediate and strict scrutiny. So, the DOJ's statement that it has no position on which form of heightened scrutiny should apply is consistent with everything it has said to date (since switching positions on defending DOMA).

    And, finally, as to an issue brought up in argumentsr: On the issue of political powerlessness, I highly recommend the talk given by Kenji Yoshino at the Williams Institute earlier this year on this subject. Video is available here:

  • 6. Jacob Combs  |  September 27, 2012 at 1:18 pm

    Thank you, Kathleen! And thanks for your note about heightened scrutiny being any level above rational basis–just updated the post to reflect that.

    As for your question, Clement was the only one to reserve time for rebuttal. He was the final person to address the court.

  • 7. Jack  |  September 27, 2012 at 11:23 am

    do you know if there will be audio or video coverage posted online sometime?

  • 8. Kathleen  |  September 27, 2012 at 12:11 pm

    Audio is available for purchase. I'm working on getting it and will then make it available. It will probably take a week or so unless someone else comes up with it sooner.

  • 9. fromdamoon  |  September 27, 2012 at 12:33 pm

    "Delery pointed to the maintenance of the status quo, a desire for uniformity in federal benefits and the decision to let the states decide for themselves how to proceed on marriage equality."

    I find it disheartening that the federal government conceded rational bases for DOMA in its arguments. In reality, none of these reasons provide a rational basis for DOMA. (1) "Maintenance of the status quo" is not a rational basis in the context of the history of the passage of DOMA, (2) DOMA actually prevents the uniformity of federal benefits in not allowing all married couples the same benefits; and (3) finding section 3 of DOMA unconstitutional would not interfere with states' rights, I believe that section 2 pertains to that issue.

  • 10. Dante  |  September 27, 2012 at 1:05 pm

    The Justice Department defends many, many statutes on a rational basis standard and, as an institution, can't assert in a single case — even one as important as this — that there aren't any rational bases for a statute. What's important — historic — here is that Delery said that those rational bases should not prevail in this case. And what's also important and historic is that we finally have the federal government saying that legislation affecting gay rights is subject to heightened scrutiny. This is all big news (a long time coming)….

  • 11. fromdamoon  |  September 27, 2012 at 1:40 pm

    That is big news from the standpoint of the Justice Department. I just hope that the Second Circuit and ultimately the Supreme Court are ready to find heightened scrutiny!

  • 12. Dante  |  September 28, 2012 at 8:35 am

    Agreed — the Court gets the last and most important word, but it's important to me that the executive branch at least is on the right side of this — finally. And actually, I talked today to people in the courtroom who said that the government wasn't asserting those rational bases again, but that one of the judges was pushing Delery to state the rational bases that the government had used in its briefing before deciding NOT to defend DOMA. So seems like he was maybe just getting beaten up a bit to highlight the government's change of position. In any event, fingers crossed.

  • 13. Kat  |  September 29, 2012 at 5:08 am

    Dante, this is great news! Jacob great job on being our eyes and ears and penning the details in a manner in which can be understood by many. We are all waiting with baited breathe on these decisions in which effect the lives of all LGBT couples and our families. Also many thanks to the people commenting and bring up such great points and questions!

  • 14. SHOES THROWER  |  October 7, 2012 at 10:06 am

    DOMA Section 3 would easily satisfy rational basis scrutiny, and just as easily fail strict scrutiny.

    Intermediate scrutiny would be a close call; the Supreme Court's language in Murphy implies a compelling interest in defining marriage as between one man and one woman, and that particular holding in Murphy has yet to be overruled.

  • 15. davep  |  September 27, 2012 at 12:39 pm

    Thank you, Jacob and P8TT, for this excellent summary!

  • 16. Robert  |  September 27, 2012 at 12:55 pm

    BLAG – "Bigots for Lawsuits Against Gays"

  • 17. Gregory in SLC  |  September 27, 2012 at 12:55 pm

    Baker again…bah!

  • 18. sfbob  |  September 27, 2012 at 1:15 pm

    I don't know why they waste their time. Baker doesn't even remotely apply here as Baker related to the RIGHT to marriage whereas all of the DOMA cases pertain to federal recognition of marriages that are, in fact, already legal and in existence at the state level. Baker could plausibly be used to rebut marriage equality litigation at the state level (though NOT with respect to Prop 8 because the CA Supreme Court had already defined marriage equality as a fundamental right within the state of California), but in terms of DOMA, which does not question the ability of states to solemnize same-sex marriages, Baker is utterly irrelevant.

  • 19. davep  |  September 27, 2012 at 1:38 pm

    It's not just their Baker argument. So far, NONE of the arguments they offer withstand any rational scrutiny. I know it's pretty early in the proceedings but so far I think this looks quite good for 'our side'.

  • 20. dong90806  |  September 27, 2012 at 6:57 pm

    Several weeks ago, a Minnesota Ct of Appeal (the same state where Baker was litigated) held that Baker was not binding in a marriage case in the State of Minnesota.

  • 21. SHOES THROWER  |  October 7, 2012 at 10:07 am

    Baker forecloses arguments that DOMA violates a due process or equal protection right to same-sex marriage; the one circuit to apply Baker held as such.

  • 22. Eric  |  September 27, 2012 at 1:48 pm

    Did I read correctly that Clement wants Justice O'Connor's concurrence both followed and ignored?

    "Judge Droney then asked Clement to defend DOMA under the intermediate scrutiny test, which Clement responded to by pointing out Justice O’Connor’s concurrence in the Supreme Court case of Lawrence v. Texas, which noted that there is an important governmental interest in preserving tradition marriage…. Judge Droney pointed out that it was Justice O’Connor’s concurrence that established the idea of the ‘rational basis with teeth’ test, but Clement responded that her opinion does not represent a majority view of the Supreme Court and should not be used by lower courts."

  • 23. Matt N  |  September 27, 2012 at 2:09 pm

    I thought that was amusing when I read it too. I am surprised that Clement wants to continue to argue these cases when there are no solid arguments. He really comes off looking like a fool. The only justices who will be persuaded by him are those that have already made up their minds that gay citizens are second class.

  • 24. Jacob Combs  |  September 28, 2012 at 6:36 am

    That's exactly what it seemed like–Judge Droney really got him on that one. All around, the judges were quite adept at challenging the attorneys on both sides.

  • 25. Eric  |  September 27, 2012 at 1:52 pm

    If DOMA doesn't impact state law, why does Massachusetts have standing in other DOMA cases?

    If DOMA doesn't impact state law, why won't CA, MA, or any other state that recognizes marriage equality allow same-sex spouses of veterans to be buried in veterans cemeteries that are state owned, but receive federal funding? And what does the conditions of receiving federal funds have to do with complying with state constitutions? Why can a state ignore its constitution and the fundamental rights of its citizens, just because the feds won't pay for something?

  • 26. Guest  |  September 27, 2012 at 1:57 pm

    "Clement recognized that his argument was “circular,” but asserted that this was the very nature of a definition."

    Does anyone else see any significance of this? Perhaps it is not significant, but as far as I can see, taking this position has very pervasive consequences.

    Perhaps someone has any information regarding Court precedent on definition?
    Does, would, or is the Court plausibly accepting what Clement stated as 'the very nature of a definition'? Is this how it normally works? Are there any specific cases where this has been an issue in the past?
    Perhpas I'm reading this wrong?

    Any input is appreciated, and great work!

  • 27. davep  |  September 27, 2012 at 2:17 pm

    Circular logic is not 'the very nature of a definition'. It is the very nature of a tautology, a form of flawed logic.

    Pertaining to this issue, it is implying that the law cannot be changed to include definition X because the law currently does not include definition X. The logic flaw is obvious.

    It is created when someone replaced "SHOULD not be changed" with the erroneous statement "CANNOT be changed" to avoid having to offer a valid reason for WHY it should not be changed. It's just more rhetoric.

  • 28. Jacob Combs  |  September 28, 2012 at 6:40 am

    Very true. I saw this as a sort of 'man behind the curtain' moment where the real truth is revealed. Clement is saying, Congress can maintain the traditional definition of marriage because it's the traditional definition of marriage! But that's not really a legal argument, it's very much a tautology, as you say.

  • 29. Guest  |  September 28, 2012 at 12:26 pm

    Thanks guys;
    Why would the judges even allow him to say that and not respond ?

    Just trying to wrap my head around it.

  • 30. MightyAcorn  |  September 28, 2012 at 6:21 pm

    Because it would be unseemly for a judge to say out loud what he/she would really like to say: "That's so totally *weak*, dude."

  • 31. Steve  |  September 29, 2012 at 8:13 am

    There are some judges who have awesome ways to show displeasure with lawyers without outright insulting them.

  • 32. Straight Dave  |  September 29, 2012 at 7:17 am

    Oh, don't worry. The judges will respond in due course, in writing. And throw the whole bogus argument in the trash can.
    Most of them are very self-restrained to avoid getting into an argument in court. They don't need to since they hold the ultimate trump card, to be played later.

  • 33. Guest  |  September 29, 2012 at 1:12 pm

    Thanks everyone, much clearer now,

  • 34. Sagesse  |  September 27, 2012 at 2:22 pm

    DOMA (section 3) is an interesting beast. Operationally, it says nothing about who can or can't get married… only the states can do that. Its effect is to limit who can receive federal benefits. But semantically (and this is exactly what the traditional marriage folks wanted), it accomplishes those limits by defining marriage.

  • 35. Skeptic  |  September 27, 2012 at 5:11 pm

    "Kaplan replied that a desire to save money had to be connected to another legitimate interest to pass constitutional muster.." What about the application of how to save money? Why was that not considered, the how as opposed to the why? Could the congress single out the exclusion of people with brown eyes as a way to save money, if it meets that objective.

  • 36. davep  |  September 27, 2012 at 5:53 pm

    Exactly. There has to be a rational relationship between the stated goal of the law and what the law actually does (who the law singles out for different legal treatment). For example, there would likely be a rational relationship between the state's goal of 'assuring public safety' and a law that denies legally blind people access to a driver's license. There would be no such rational relationship between that same goal and a law that denied, say, vegetarians access to a drivers license. The group that is singled out, and what the law does to them, bears no relationship to the stated goal.

    "Conserving the public fisc" may be a real goal, but you cannot make laws that single out particular groups on an arbitrary basis to bear the burden of that goal

    That's why these arguments about "encouraging responsible procreation" are so ridiculous. While there may be a valid states interest in encouraging responsible procreation among people who procreate, laws that deny OTHER couples access to civil marriage do nothing to achieve that goal. And things like DOMA, which simply deny recognition of already existing legal marriages, are even further from any semblance of a rational basis between the stated goal and the nature of the law.

  • 37. Steve  |  September 27, 2012 at 6:24 pm

    Yeah, I wondered about that too. Of course the government has an interest in saving money, but they can only do that by cutting a certain benefit or right for everyone. They can't just target one specific group that has the same attributes as another.

  • 38. Guest  |  September 28, 2012 at 3:08 pm

    No, congress can not do this. In Frontiero v. Richardson, the Court held that mere administrative convenience cannot insulate a discriminatory law from Constitutional attack.

  • 39. Nicolas  |  September 27, 2012 at 6:13 pm

    If anyone finds a source for the oral arguments, I would greatly appreciate a link. I will check back from time to time in the hopes it is found. Thanks for your work so far Jacob.

  • 40. echamberlain  |  September 27, 2012 at 7:10 pm

    If as Clement argues, that being denied the franchise is what qualifies for strict scrutiny, then I would argue: sodomy->felony->no franchise, thank you for strict scrutiny.

  • 41. Matt N  |  September 27, 2012 at 10:36 pm

    Yes, and I'm pretty sure if a gay person commits suicide due to being treated like a second-class citizen, they won't be voting either.

    In any case, voting is just a proxy for political power. If the government were already doing everything we wanted them to do, there would be no need to vote. Clements, again, is twisting things beyond reason. When has the Supreme Court ever used the right to vote as the exclusive criterion for heightened scrutiny.. this is just Clements's pipe dream.

    Plus all races and genders are currently allowed to vote. Why haven't we *removed* those classes from heightened scrutiny then? Clements looks really foolish with these arguments.

  • 42. davep  |  September 28, 2012 at 10:28 am

    Very good points, and well said.

  • 43. Leo  |  September 28, 2012 at 7:13 am

    Have illegitimate children (intermediate scrutiny) ever been denied the franchise, if anyone knows?
    (I mean, of course, adult illegitimate children. White males are also "denied the franchise" for the first 18 years of their life.)

  • 44. Bryce in DC and KS  |  September 27, 2012 at 10:48 pm

    From anyone in the courtroom, we have a lot of commentary on what they said… how about how they said it? What was everyone's demeanor? Their tones? Did the judges seem partial to one side or another? Did one side seem more or less confident? Did anyone get up on the table and dance during arguments? Give us all the low-down!

  • 45. AnonyGrl  |  September 28, 2012 at 6:39 am

    Wow! I am seriously hoping for the table dancing thing! 🙂

  • 46. Jacob Combs  |  September 28, 2012 at 7:12 am

    Paul Clement got up on the table with his tap shoes on–wait, no, that didn't happen 🙂

    The demeanor in the courtroom was very relaxed. The judges allowed all three attorneys to make their statements, interrupting them frequently but not pointedly to ask questions. Judge Straub spoke rarely, but was the most forceful, often asking a question which a lawyer would sort of half-answer and then pushing for a clearer answer. Chief Judge Jacobs made several jokes and kept the atmosphere light, but nevertheless challenged counsel on their arguments. Judge Droney spoke often and very politely, but noted discrepancies in the lawyer's arguments, especially Paul Clement's.

    Overall, both sides seemed quite poised and comfortable. The judges didn't seem to favor or be partial towards either side, and I walked away with no impression of which way they would judge. They certainly seemed to want verification from Windsor's attorney that the case didn't concern marriage equality directly. And they seemed skeptical of the standing argument and the idea that Baker might control.

    What seemed to be curiously absent to me was any in-depth discussion of Judge Jones's opinion. It was almost never brought up by the judges, and they didn't discuss her consideration of the proper level of constitutional scrutiny to apply. Having said that, they talked about scrutiny a ton, and pressed both sides to flesh out their arguments. But it certainly didn't seem like a review of the lower court decision, since Judge Jones's opinion was rarely brought up.

  • 47. dong90806  |  September 28, 2012 at 1:51 pm

    Several opinions he authored indicated he is very pro-life.

  • 48. Lawyers rehearse Supreme &hellip  |  September 29, 2012 at 1:21 pm

    […] On Thursday, the Second Circuit heard oral argument in Windsor v. OPM, the DoMA challenge brought by the ACLU on behalf of Edie Windsor, who got hit with a $750,000 tax bill that would not have applied to her if her marriage had been recognized.  This is one of the cases that plaintiffs are trying to persuade the Supreme Court to take even before there is a Court of Appeals decision. In Windsor, the appellate court decided to go ahead with the argument even though the cert petition is pending. If the petition is granted, the Second Circuit will suspend its consideration of the case. If the petition is denied, they will have already begun the process of producing a Court of Appeals decision.Especially given that advocates are gearing up for what is widely expected to be Supreme Court review of DoMA's constitutionality sometime this term, the Court of Appeals arguments sound more and more like rehearsal for the Supremes.  Jay Bing, who blogs for Prop8TrialTracker attended the hearing; following is an excerpt of his report: […]

  • 49. Prop 8 Trial Tracker &raq&hellip  |  October 18, 2012 at 9:51 am

    […] DOMA) and the Bipartisan Legal Advisory Group (defending DOMA on behalf of House Republicans) had argued to the Second Circuit. Indeed, the majority opinion refuses to disagree with the dissenting judge’s belief that the […]

  • 50. ping - Googleda Birinci S&hellip  |  December 25, 2012 at 5:49 am

    […]… […]

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