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Supreme Court hears oral arguments in Windsor DOMA challenge

The U.S. Supreme Court hears oral arguments in U.S. v. Windsor, the case challenging the constitutionality of Section 3 of the Defense of Marriage Act, which denies married same-sex couples from accessing federal marital benefits.  The hearing is split into two sections: a 50-minute discussion of questions of standing and jurisdiction, and a one hour discussion of the law’s merits.  On the former issue, a majority of Justices seem to lean towards a decision that the Court can indeed hear the DOMA case.  On the latter, a majority of Justices appear to believe that the law is unconstitutional, albeit on two distinct grounds.

During the jurisdictional arguments, there is evidence skepticism on behalf of the Court that the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives should be allowed to defend DOMA since the federal government has chosen not to.  Nevertheless, the Court also appears wary about the idea that the federal government should be able to appeal a lower court decision that it agrees with (that is, that DOMA violates the U.S. Constitution), with Chief Justice Roberts calling such an idea “wholly unprecedented.”  Several of the Justices, however–among them Kennedy and Kagan–point out their beliefs that there is a clear injury in the case in the form of the more than $363,000 estate tax refund that the federal government would be required to pay Edie Windsor if DOMA were invalidated.

On the merits of the law, the Court’s liberals ask pointed questions of the attorneys as to whether or not DOMA violates the equal protection provisions of the U.S. Constitution.  Justice Kennedy, on the other hand, pursues a more federalism-based line of questioning, asking if DOMA should be struck down as an inadmissible intrusion of the federal government on marital law, which has typically been an issue of state authority.  In this later line of reasoning, Kennedy is joined at times by Chief Justice Roberts and Justice Alito.

Paul Clement, arguing on behalf of BLAG and in support of DOMA, tells the Justices that Congress passed the law in order to provide uniformity in the federal definition of marriage.  In response to a question from Justice Breyer, Clement says that DOMA allowed the states to make decisions about marriage equality for themselves, instead of allowing one state to provide equal marriage rights and thus bring marriage equality to the whole country.

Justice Kennedy points out that DOMA only helps some states while hurting others: even if Section 2 of the law protects states from recognizing other states’ same-sex marriage licenses, he says, Section 3 of the law undoubtedly harms states that do decide to extend equal marriage rights to same-sex couples.  In essence, Kennedy wryly points out, the only states that got the federal government’s help on DOMA were those who did what the government wanted, i.e., retained the traditional definition of marriage for opposite-sex couples only.

Pointing towards the issue of equal protection, Justice Ginsburg notes that marriage affects every aspect of life and says that DOMA essentially creates two types of marriage in America, the full kind and another one that’s more like “skim milk.”  Justice Kagan denounces the uniformity argument entirely, pointing out that the only uniform aspect to the federal government’s definition of marriage before DOMA was that it deferred to the states’ own definitions.  Since such a federal definition has never been attempted before DOMA, she asks, shouldn’t that be a red flag that the law was passed out of animus towards gays and lesbians?

Justice Sotomayor continues on this line, quoting the House record from the passage of DOMA that read that the law expressed Congress’s “moral disapproval of homosexuality.”  Justice Breyer askes Clement to assume that uniformity isn’t enough to save DOMA and asked for a list of “really specific things” that would explain why Congress needed to limit federal marital benefits to same-sex couples for the sake of uniformity.

Representing the federal government, Solicitor General Donald Verilli, Jr. faces tough questioning from the Justices.  Verrilli tells the Court that the federal government does not see a federalism problem inherent in DOMA and instead urges the Court to strike the law down on equal protection grounds.  The Justices push back on him, with Justice Kennedy asking if Verrilli’s argument means that Congress could dictate any definition of marriage for the states.  Kennedy reminds the Solicitor General that the Court need not even address the equal protection question if DOMA represents an unconstitutional exercise of federal power.

Chief Justice Roberts asks if all the legislators who voted for DOMA and the president who signed it (Clinton) were motivated by animus.  Verrilli tells the Court that he does not believe that this was necessarily the case, but then says pointedly that “Section 3 is discrimination” and that singling out gays and lesbians for disfavor does not comport with the ideals of the U.S. Constitution.

Roberta Kaplan, representing Edie Windsor, responds to a question from Justice Alito as to what would happen without DOMA if a same-sex couple married in one state and then moved to another without marriage equality and challenged that state’s marriage laws by telling the Justices that the courts would need to consider the individual state’s reasons for limiting marriage to opposite-sex couples.  Regardless, though, she argues, no compelling argument can (or has) been made to explain why the federal government should treat same-sex couples differently.

Justice Breyer asks if DOMA was simply a decision by Congress to “stay out” of the marriage equality issue, but Kaplan disavows this idea, saying that DOMA in no way stayed out of the question, instead setting up a legal scheme that would eventually punish states that extended equal marriage rights to same-sex couples.

In his rebuttal, Paul Clement reiterates his argument that the Justices should stay out of the democratic discussion happening on marriage equality and allow Congress to debate any repeal of DOMA rather than having it invalidated by the Court.

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