Equality On Trial

A 3-judge panel of the Second Circuit Court of Appeals in Manhattan hears oral arguments in the appeal of a district court ruling striking down DOMA and awarding a tax refund to Edie Windsor.  Although the ACLU, which is representing Windsor, had appealed the decision directly to the Supreme Court, the Bipartisan Legal Advisory Group of the House of Representatives, which is defending DOMA, had asked the Second Circuit to take up the case.  The 3-judge panel is made up 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.

Paul Clement, the conservative attorney who argued against the constitutionality of the Affordable Care Act before the Supreme Court, represents BLAG at the Second Circuit hearing.  Clement argues that Edie Windsor does not having standing to pursue her suit because she and her wife Thea were wed in Canada and not the United States, an argument to which the judges express deep skepticism.  Clement also argues that the 1972 Supreme Court decision in Baker v. Nelson, in which the Court dismissed a suit brought by a Minnesota gay couple seeking a marriage license, is an impediment to the Windsor case.  Chief Judge Jacobs notes that such a precedent should only be applied to another case that presents the same “precise facts,” but Clement argues that Baker should be binding precedent on all marriage equality suits.

Clement also tells the panel that Congress’s decision to pass DOMA did nothing to require states to adopt a specific definition of marriage, but rather that it chose to maintain a traditional definition of marriage for the purposes of federal law.  Judge Straub asks Clement to present a Supreme Court opinion that lays out this ‘traditional definition’ in the eyes of the law and Clement responds by pointing to Murphy v. Ramsey, an 1885 ruling on polygamy in what was then the Utah territory.

In addition, Paul Clement tells the Second Circuit that DOMA should be considered under the most deferential rational basis scrutiny test since gays and lesbians are not politically powerless.  Affording gays and lesbians a higher level of scrutiny, he says, would take marriage equality “off the table,” and he argues that the issue should be left up to the legislative branch instead and not the judicial branch.

Roberta Kaplan, Edie Windsor’s attorney, tells the court that it should consider DOMA under the most deferential strict scrutiny test since it narrowly pertains to only one group but affects that group in a broad, sweeping way.  Chief Judge Jacobs asks Kaplan why Congress couldn’t simply pass DOMA to save the public’s money, but Kaplan replies that such a legislative reasoning would only be constitutionally permissible if it were paired with another governmental interest.  Kaplan also tells the court that in the entire history of the American republic, the federal government has always deferred to state definitions of marriage.

Stuart Delery, Acting Assistant Attorney General for the Civil Division, represents the federal government before the panel.  He reiterates the Justice Department’s position that DOMA should be considered under heightened scrutiny, and while he acknowledges that there could be a rational reason for Congress’s passing the law, he asserts that the DOJ does not believe such reasons should allow the law to survive constitutional review.

On rebuttal, Clement tells 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 argues 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 tells the court, Congress opted for uniformity over deference in the future.