DOMA Oral Argument

by Ed Whelan

Here’s the transcript. So far I’ve reviewed (very quickly) the portion of the argument (pp. 55 forward) dedicated to the question whether DOMA is constitutional (as opposed to the jurisdiction/standing issues in the first portion). Some very quick thoughts:

1. Justice Kennedy’s questions and comments are not encouraging, as they reflect a fundamental confusion that DOMA involves the exercise of an authority to regulate marriage. See, e.g., p. 76: “The question is whether or not the Federal government, under our federalism scheme, has the authority to regulate marriage.”

2. Some excellent questioning by the Chief Justice ought to dispel Kennedy’s confusion.

From the Chief’s exchange with SG Verrilli (p. 81):

CHIEF JUSTICE ROBERTS: Suppose your — you agree that Congress could go the other way, right? Congress could pass a new law today that says, We will give Federal benefits. When we say “marriage” in Federal law, we mean committed same-sex couples as well [i.e., whether or not married under state law], and that could apply across the board.

Or do you think that they couldn’t do that?

GENERAL VERRILLI: We think that wouldn’t raise an equal protection problem like this statute does, Mr. Chief Justice.

CHIEF JUSTICE ROBERTS: Well, no, my point is: It wouldn’t — you don’t think it would raise a federalism problem either, do you?

GENERAL VERRILLI: I don’t think it would raise a federalism problem.

But it can’t be the case that a federal definition of marriage for purposes of federalism law presents a federalism problem under DOMA but not under the Chief’s hypothetical.

3. I also liked this line of questioning from Justice Alito, which he posed to Paul Clement (pp. 76-77), then later (p. 99), in slightly different fashion, to plaintiff’s lawyer:

JUSTICE ALITO: Well, Congress could have achieved exactly what it achieved under Section 3 by excising the term “married” from the United States Code and replacing it with something more neutral. It could have said “certified domestic units,” and then defined this in exactly the way that Section 3 — exactly the way DOMA defines “marriage.”

Would that make a difference? In that instance, the Federal Government wouldn’t be purporting to say who is married and who is not married; it would be saying who is entitled to various Federal benefits and burdens based on a Federal definition.

What this shows, of course, is that Congress’s use of the word marriage for purposes of provisions of federal law, when it could have used, to identical effect, the term certified domestic units, shouldn’t confuse anyone into thinking that Congress is intruding on state regulation of marriage.

4. SG Verrilli initially conceded that DOMA doesn’t present a federalism problem (p. 81):

CHIEF JUSTICE ROBERTS: So just to be clear, you don’t think there is a federalism problem with what Congress has done in DOMA?

GENERAL VERRILLI: We — no, we don’t, Mr. Chief Justice.

But he then tried to back away from his concession by claiming that “the federalism analysis does play into the equal protection analysis.” (Pp. 84-85; see generally pp. 82-85.)

(I may not have much more on this today, as I’m heading soon to a panel discussion.)