The Supreme Court heard its second of two consequential same-sex-marriage cases Wednesday, in United States v. Windsor. Here are five takeaways from the oral arguments.
Where’s the Beef?
Just as with the Prop 8 case, there is considerable question as to whether the DOMA case is even properly before the Court. The case is called United States v. Windsor, but it isn’t the Obama administration representing Uncle Sam, it’s John Boehner and the House of Representatives’ Bipartisan Legal Advisory Group. That’s because the Obama administration agrees with Ms. Windsor, who sued the government for damages after she was forced to pay taxes on the estate of her late wife (the couple were legally married in Canada) in excess of what she would have had she been a legally recognized spouse under DOMA.
That means there is a legitimate question as to whether there is, in the language of jurisprudence, an actual “adversity” in the case before the Court, and thus whether the Court has jurisdiction. A related question is whether Congress generally, and the Bipartisan Legal Advisory Group in particular, have standing to defend DOMA in the executive’s stead. The House and BLAG would have to stand to be “harmed” by the law’s non-enforcement, and the House’s lawyers — to demonstrate standing — would have to establish that one house of Congress has a general prerogative to defend the laws of the United States even when the executive will not. (If you’re interested, you can read Paul Clement
— as usual, quite obviously the best lawyer in the room, whatever you think of his arguments — who makes a pretty compelling case that the House has standing, on pp. 45–50).
The Courage of Obama’s Convictions
The Court actually had to appoint a lawyer, Vicki Jackson, to argue that the case should be dismissed, because, among other reasons, the Obama administration agrees with the ruling of the lower courts and the redress awarded to Windsor. Jackson’s argument was built around this very odd feature of Windsor: Yes, the United States was ruled against by federal district and appellate courts, ordered to pay damages, and was, in a sense, “happy” to do so. But the government then bizarrely supported appeal to the Supreme Court — not to overturn the judgment against it, but to affirm it. Weirder still, though the Obama administration had “evolved” into thinking DOMA unconstitutional, and refused to defend it in litigation, it still enforced the statute, essentially asking the Supreme Court to give it cover before it stopped doing so.
As Chief Justice Roberts pointed out, that’s not just unusual, “it’s totally unprecedented.”
“If he has made a determination that executing the law by enforcing the terms is unconstitutional,” said Roberts of the president, “I don’t see why he doesn’t have the courage of his convictions and execute not only the statute, but do it consistent with his view of the Constitution, rather than saying, oh, we’ll wait till the Supreme Court tells us we have no choice.”
Narrow or Wide?
Whatever else you can say about it, the Roberts Court tends to decide narrowly, when it can. So don’t be surprised if Windsor never gets past the jurisdictional and standing issues. But even if the Court gets to the merits, it can still rule narrowly. Paul Clement, who argued in defense of DOMA, very much framed his argument with a narrow ruling in mind, avoiding Equal Protection and other morally loaded issues in favor of questions of federalism — namely, whether the federal government has the power to define marriage for federal law or whether it must simply “borrow the terms in State law.”
Said Clement (emphasis added):
For tax consequences, if you get a divorce every December, you know, for tax consequences, the state may well recognize that divorce. The federal government has long said, look, we are not going to allow you [to] get a divorce every December just to get remarried in January so you’ll have a filing tax status that works for you that is more favorable to you. So the federal government has always treated this somewhat distinctly; it always has its own efforts; and I do think for purposes of the federalism issue, it really matters that all DOMA does is take this term where it appears in federal law and define it for purposes of federal law. It would obviously be a radically different case if Congress had, in 1996, decided to try to stop states from defining marriage in a particular way or dictate how they would decide it in that way.