The transcript of today’s oral argument in United States v. Windsor, the Defense of Marriage Act case, ranges widely across both jurisdictional issues and the merits of DOMA’s constitutionality. I think the jurisdictional issues are much harder to sort out than the merits are. And it seems clear from the amount of time devoted to these issues, and the character of the justices’ questions and their answers to the responses, that they regard them as tougher than in yesterday’s Perry case on Prop 8. Much of the trouble is caused by the Obama administration’s decision to adopt the untenable position that it would argue in court that Section 3 of DOMA (governing the meaning of marriage in federal law) is unconstitutional, yet continue to enforce it anyway. As Justice Alito put it (p. 9 of transcript):
The President’s position in this case is that he is going to continue to enforce DOMA, engage in conduct that he believes is unconstitutional, until this Court tells him to stop.
And so the Justice Department asserts that it has standing to appear as a party in a case in which it agrees with the nominally opposing party–but that the Bipartisan Legal Advisory Group (BLAG), which hired former solicitor general Paul Clement to represent the House of Representatives, has no standing to mount the only defense of DOMA on the merits that anyone in this case is presenting.
Clement has compellingly argued (see his brief here) that BLAG is entitled to defend the constitutionality of DOMA as a party (not just amicus) in this case, but that the United States (officially represented by the Justice Department) is the party with no standing, since from the trial court onward, it has agreed with Edith Windsor that DOMA is unconstitutional. The Justice Department’s argument that it can agree with Windsor and still be more than a bystander in the case strikes me as very weak.
The court-appointed amica curiae, Vicki Jackson, made a pretty well-constructed argument that neither BLAG nor the United States is the sort of adverse party that can give the Court jurisdiction of the case. But where that leaves the litigation’s outcome is a matter where her argument seems murkier. As Clement noted in his brief, BLAG has been carrying all the water for DOMA’s constitutionality in the district court and the circuit court, as well as here in the Supreme Court. Could the Court reasonably decline jurisdiction without reaching all the way down to vacate both lower-court rulings? And then what?
As I say, this is a real mess, brought on by the Obama administration’s irresponsible decision both to abandon the defense of DOMA’s constitutionality and to insist that the issue must still be litigated with its participation as a party. As Paul Clement said, this led even at the district court to “the most anomalous motion to dismiss in the history of litigation: A motion to dismiss, filed by the United States, asking the district court not to dismiss the case.” To which Justice Kennedy replied that “that would give you intellectual whiplash. I’m going to have to think about that.” There was laughter in the courtroom at this remark, but this mess is no laughing matter.
Assuming the Court reaches the merits of DOMA, the questions actually become much easier. To the observations Ed has made, I would add that Chief Justice Roberts distinguished himself in his questioning on the merits today.
Roberts twice asked counsel whether one must see “animus” in the votes of the 84 senators (and, implicitly, also the many more House members) who voted for DOMA. Both SG Verrilli and Windsor’s counsel Roberta Kaplan went on the record saying that “animus” was not or need not have been the driving force behind the passage of DOMA. They tried a softer line, that attitudes toward gay couples suffered from an “incorrect understanding” in 1996. But real animus–meaning something “irrational”–would seem to be necessarily present in order for the Court to find DOMA unconstitutional under the rational basis test. So this was a significant concession.
Then the chief justice pursued a line of questioning with Windsor’s counsel that probed whether some form of “heightened scrutiny” is merited for the analysis of whether homosexual couples were treated wrongly under the equal protection clause. He wanted to know if all the movement in favor of same-sex marriage in recent years–and even in recent weeks–hasn’t been precisely because gays and lesbians and their allies are extremely powerful politically. Political powerlessness is a key component in a judgment that some test more stringent than rational basis will be used. If, as Kaplan argued, there has been a “sea change in people’s understandings,” Roberts said, it’s hard to see where that came from, “if not from the political effectiveness of–of groups on your side of the case” (pp. 108-09).
Lots of political power = no need for heightened scrutiny. Absence of irrational animus = no problem under the rational basis test. As I said, on the merits this one is easy. Which is, of course, never to say that there aren’t five justices who could get this badly wrong!