Justices Appear Skeptical of Defense of Marriage Act



A demonstrator holds up a “repeal DOMA” sign in front of a group praying at the Supreme Court. Justices heard arguments Wednesday about the Defense of Marriage Act. (AP)

A majority of the Supreme Court voiced skepticism Wednesday of whether or why the federal government could refuse to recognize legally performed same-sex marriages in states that allow them.

Considering a challenge to the 1996 federal Defense of Marriage Act, known as DOMA, the justices wrestled with how the federal government could justify excluding gay couples who are legally married in a state’s eyes -- a situation that leaves them without a host of rights afforded heterosexual couples, including inheritances and tax preferences.

“Given that set of attributes, one might well ask, ‘What kind of marriage is this?’" Justice Ruth Bader Ginsburg asked, later suggesting that a state marriage without federal recognition might amount to a “skim milk” version, or second-rate.

"(Marriage) affects every area of life,” she added. “We would really be diminishing what the state has said marriage is.”

Wednesday was the second day of a historic two days of hearings as the Supreme Court considers whether states or the federal government could constitutionally ban same-sex couples from being married. Tuesday’s arguments focused on California’s Proposition 8, which banned same-sex marriage in 2008 but was overturned by a lower court on narrow grounds.

In Tuesday’s arguments, the court wrestled with state bans on same-sex marriage, with many justices seeming skeptical of the bans but also worrying about a ruling that would overturn established law in more than three dozen states.

In Wednesday’s discussion over the federal ban, though, there was little hint of that wariness from a majority of the justices.

Justice Anthony Kennedy, who’s seen as the crucial swing vote between the four liberal members of the court and the four conservatives, questioned what role the federal government had in defining or regulating marriage at all, given the central role states have historically played in that realm.

“The question is whether the federal government has the power under our federalism scheme to regulate marriage,” Kennedy said, adding that the federal law was “at real risk” of jeopardizing the essence of state power in intruding on state marriage laws.

Notably, Kennedy’s skepticism wasn’t limited to questions of federalism. At one point, he probed the heart of the matter, asking point blank: “What is the federal interest in enacting this statute and is it a valid interest?"

Making that case fell to former Solicitor General Paul Clement, who was representing the House of Representatives – and its majority Republicans – in defending the federal law because the Obama administration has refused.

In looking to protect the law, Clement referenced the legislative history of DOMA, saying that when it was enacted in 1996 only a few states were considering opening their laws to same-sex marriage. He suggested that Congress’ interest at the time wasn’t to treat gay couples differently, but rather to ensure that everyone was treated the same: That a gay couple in one state wouldn’t see federal marriage benefits while another couple elsewhere would not.

Clement said the federal government was forced to choose between maintaining uniformity across the country or allowing states to potentially dictate sweeping changes in how federal law applies to marriages – in this case newly allowed same-sex marriages.

“They picked the traditional definition,” Clement added, saying that when Congress enacted a law that applied to marriage it was assumed to apply to heterosexual marriage because that’s all that existed legally.

Chief Justice Roberts and Justice Antonin Scalia focused on the federalism questions, going to great lengths to get the lawyers to address worries about states’ ability to maintain their own marriage laws under a scheme where the federal government recognizes same-sex marriages in states that allow them.

“You don’t think federalism concerns come into play in any of this, is that right?” Roberts asked.

Scalia echoed that: “You think that all of those (couples) have to be treated the same despite state law? ... Is there a federalism problem or isn’t there?”

That argument didn’t stand with the court’s liberals. "You're saying uniform treatment is good enough no matter how odd it is?" asked Justice Stephen Breyer.

Justice Sonia Sotomayor was equally skeptical. “You’re treating married couples differently,” she said flatly. “What gives the federal government (reason) to be concerned at all about the definition of marriages?"

But perhaps the most pointed response came from Justice Elena Kagan, who said the congressional record when DOMA was enacted suggested that the lawmakers weren’t motivated by a concern of uniformity, but rather a desire to express moral disapproval toward people who were “not everybody’s favorite group.”

"Do we think that Congress' judgment was influenced by dislike?" she said, drawing an audible “oooh” from spectators in the courtroom.

Clement replied that the court has never struck down a statute because of the poor intentions of lawmakers who enacted it. He said Congress was concerned that courts were altering the definition of marriage, and that DOMA served to hit the “pause button.”

Kennedy, though, pointed out how the issue had evolved since then -- nine states plus the District of Columbia allow full same-sex marriages, in many cases with no court involvement.

When the attention turned to attorneys arguing against DOMA, Solicitor General Donald Verrilli and attorney Roberta Kaplan looked to focus on what they saw as law that ran afoul of the constitution’s equal protection clause.

“DOMA was not enacted for any purpose of uniformity,” Verrilli said. “It was enacted to exclude lawfully married same-sex couples.” He also went on to cite the same “moral disapproval” Kagan raised earlier. 

Kaplan, representing Edith Windsor, who brought the original suit against DOMA, echoed that. She pointed to supporters’ of the law inability to point to strong state interests in banning same-sex couples from marriage.  

“This is because there is none,” she said. “You’re having discrimination against a class of married couples.” 

Windsor, for her part, is a widow who challenged DOMA because she was forced to pay more than $300,000 in estate tax after her female spouse died. She would not have had to pay the tax if her marriage had been between a man and woman and therefore recognized by the federal government. 

The court’s conservative justices, though, used Verrilli and Kaplan’s argument to mount a defense of the federal law. Roberts pushed the federalism issue, asking whether there would be any concerns if Congress imposed a sweeping same-sex marriage law on the states, essentially the opposite of the Defense of Marriage Act. 

“Do you think Congress has the power to interfere, to not accept, the state definition" of marriage? he asked. 

Verrilli reiterated the U.S. government’s position that the Obama administration wasn’t arguing for a nationwide same-sex marriage law to be imposed on every state, saying it’s possible – albeit unlikely, he added – that a state could justify its own version of the Defense of Marriage Act. But the federal government cannot, he said. 

Justice Samuel Alito pushed the states’ interests even further, adopting the worry from many state officials that allowing the federal government to recognize same-sex marriages where they are legal would quickly undermine state laws around the country.  

Kaplan, like her counterpart Verrilli, avoided a direct answer, instead again stressing that state laws aside, the federal DOMA statute was unconstitutional. The states’ concerns, they said, were for another day. 

Those worries were a central part of the run-up to this week’s arguments, as the nationwide debate over same-sex marriage became increasingly mired in the patchwork of marriage laws around the country. Today, 34 states ban same-sex marriage. Six allow civil unions along with the nine plus the district that offer full marriage. Four other states offer neither same-sex marriage nor civil unions but allow some level of domestic partnerships. 

Ultimately, the court could rule in a variety of ways that could mean a historic victory for either supporters or opponents of same-sex marriage. Or the court could strike a tempered result, maintaining the current patchwork of marriage laws found today. 



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