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.
Of course, the liberal justices on the Court showed interest in importing just such Equal Protection issues, which could call for the more robust constitutional protections afforded against racial and gender discrimination and thus open the door to a wider ruling on gay marriage.
Here’s Justice Breyer hinting at that sort of thinking in response to Clement’s argument:
You would say it would be the same thing if the state passed a law — Congress passes a law which says, well, there’s some states — they all used to require 18 as the age of consent. Now, a lot of them have gone to 17. So if you’re 17 when you get married, then no tax deduction, no medical, no nothing. Or some states had a residence requirement of a year, some have six months, some have four months. So Congress passes a law that says, well, unless you’re there for a year, no medical deduction, no tax thing, no benefits of any kind, that that would be perfectly constitutional. It wouldn’t be arbitrary, it wouldn’t be random, it wouldn’t be capricious? . . .
Congress just passes a law which takes about, let’s say, 30 percent of the people who are married in the United States and says no tax deduction, no this, no that, no medical — medical benefits, none [of] these good things, none of them for about 20, 30 percent of all of the married people. Can they do that?
The Kennedy Factor, Again
So where does the Swing Voter in Chief, Justice Anthony Kennedy, come down on the issues? Well, it sure sounds like bad news for Clement and DOMA defenders. On the one hand, Kennedy seemed somewhat persuaded by Clement’s argument that the House has the standing to defend DOMA. Good, right? Nope, because on the merits, Kennedy seemed ambivalent at best on Clement’s argument that defining marriage for the purpose of federal law helps, or at least does no harm to, states that include gay unions in their own definitions of marriage.
Was DOMA homophobic in intent?
If the case is going to be decided on Equal Protection grounds, it’s going to be so decided in large part because the Court buys that the point of DOMA was discriminatory, and not just to clarify the meaning of a word in a bunch of statutes. Justice Kagan implied that she thinks the intent of DOMA was animus toward gays, and that is what Obama’s solicitor general, Donald Verrilli, explicitly argued:
This statute is not called the Federal Uniform Marriage Benefits Act; it’s called the Defense of Marriage Act. And the reason for that is because the statute is not directed at uniformity in the administration of federal benefits. . . . And the fundamental reality of it is . . . that DOMA was not enacted for any purpose of uniformity, administration, caution, pausing, any of that. It was enacted to exclude same-sex married, lawfully married couples from federal benefit regimes based on a conclusion that was driven by moral disapproval.
Of course, this would appear to put Verrilli and the Obama administration in the awkward position of implying that, e.g., 84 United States senators and President Bill Clinton were homophobes, as Chief Justice Roberts pointed out.
Roberts later implied a skepticism that gays should in any event be treated as an oppressed class, on the grounds that the very change in public opinion toward same-sex marriage that opponents of DOMA rely on is itself the product of the “political effectiveness” of pro-same-sex-marriage groups. In the end, whether the Court finds heightened Equal Protection status for gays — and thus a basis for putting DOMA through the wringer — could, ironically, depend on whether five justices think the same-sex marriage movement has been too successful to warrant it.
— Daniel Foster is NRO’s news editor.