Posted by AzBlueMeanie:
The U.S. Supreme Court today heard oral argument in United States v. Windsor, the challenge to the constitutionality of the federal Defense of Marriage Act (DOMA).
Lyle Denniston at SCOTUSblog.com has posted his first impression of today's oral argument. Argument recap: DOMA is in trouble:
If the Supreme Court can find its way through a dense procedural
thicket, and confront the constitutionality of the federal law that
defined marriage as limited to a man and a woman, that law may be gone,
after a seventeen-year existence. That was the overriding impression
after just under two hours of argument Wednesday on the fate of the
Defense of Marriage Act.
That would happen, it appeared, primarily because Justice Anthony M.
Kennedy seemed persuaded that the federal law intruded too deeply into
the power of the states to regulate marriage, and that the federal
definition cannot prevail. The only barrier to such a ruling, it
appeared, was the chance – an outside one, though — that the Court
majority might conclude that there is no live case before it at this
After a sometimes bewilderingly complex first hour, discussing the Court’s power to decide the case of United States v. Windsor
(12-307), the Court moved on to explore DOMA’s constitutionality. And
one of the most talented lawyers appearing these days before the Court —
Washington attorney Paul D. Clement — faced fervent opposition to his
defense of DOMA from enough members of the Court to make the
difference. He was there on behalf of the Republican leaders of the
House (as majority members of the House’s Bipartisan Legal Advisory
Group), defending the law because the Obama administration has stopped
Justice Kennedy told Clement that there was “a real risk” that DOMA
would interfere with the traditional authority of states to regulate
marriage. Kennedy also seemed troubled about the sweeping breadth of
DOMA’s Section 3, noting that its ban on benefits to already married
same-sex couples under 1,100 laws and programs would mean that the
federal government was “intertwined with citizens’ daily lives.” He
questioned Congress’s very authority to pass such a broad law.
Moreover, Kennedy questioned Clement’s most basic argument — that
Congress was only reaching for uniformity, so that federal agencies
would not have to sort out who was or was not married legally in
deciding who could qualify for federal marital benefits, because some
states were on the verge of recognizing same-sex marriage.
Along with sharply negative comments about DOMA by the Court’s four
more liberal members, Kennedy’s stance could put the law on the edge of
But, if the Court were to do that based on states’ rights premises, the
final ruling might not say much at all about whether same-sex couples
were any closer to gaining an equal right to marry under the
There did not appear to be a majority of Justices willing to strike down
the 1996 law based on the argument that the Obama administration and
gay rights advocates have been pressing: that is, the law violates the
Fifth Amendment guarantee of legal equality in general.
[S]olicitor General Donald B. Verrilli, Jr. was pushing for a
wide-ranging ruling that might have the potential to outlaw any ban on
same-sex marriage. It was not apparent that Verrilli was making much
headway with his argument that any law that treats gays and lesbians
less favorably, because of their sexual identity, should have to
satisfy a stricter constitutional test.
The Court, although it has been dealing with gay rights cases for years,
has never spelled out a specific constitutional standard for judging
laws that allegedly discriminate based on homosexuality. The
indications on Wednesday were that the DOMA case might be decided
without supplying such a standard, since a decision based on
interference with states’ prerogatives would not require the creation
of a test based on equality principles.
The New York City woman who had successfully challenged DOMA in this case — Edith Schlain Windsor, an eighty-three-year-old widow of a same-sex
marriage, sat in the second row of the audience to watch the Court
deal with her case.
The Court explored its authority to decide the DOMA case in the first
hour of Wednesday’s session, probing that issue with Clement for the
House leaders, along with a Court-appointed adviser — Harvard professor
Vicki C. Jackson — named to argue against a decision on DOMA’s merits,
and an Obama Administration attorney, Deputy Solicitor General Sri
In order to rule on DOMA’s validity, the Court has to be persuaded
that it has a genuine controversy before it — that is a real legal
dispute between opposing parties, each of whom has a direct interest in
the outcome. Whether it has that was the issue, with Professor Jackson
arguing that the Administration wants the same thing as Mrs. Window —
nullifying of DOMA Section 3 — so the Court has no jurisdiction over the
government’s appeal, and arguing that the House GOP leaders have no
direct harm they can claim even if DOMA is nullified.
The Justices seemed somewhat at odds over whether they do have
the authority to go ahead with this case, so the possibility remained
that the Court in the end could choose not to decide the merits of the
law’s validity. That portion of the argument focused on just who in
Congress, if anyone, could be in court to defend a federal law when the
Executive Branch chose not to do so.
Justice Kennedy seemed to be leaning toward finding that there did
exist a live controversy — between the government and Mrs. Windsor, over
whether she is entitled to a refund of an estate tax she paid on her
late spouse’s estate. But Chief Justice John G. Roberts, Jr.,
commented that the Court had never ruled on a case in which all of the
parties involved agreed [i.e., no controversy] — as he suggested would be the case wih the
government and Mrs. Windsor sharing their opposition to DOMA.
It did not appear, however, that Clement had succeeded in contending
that the House GOP leaders (BLAG) had a full right to be in court to
defend DOMA in the absence of a defense by the government.
- The oral argument transcript in United States v. Windsor is here.
- Audio of the oral argument is here.
Kudos to SCOTUSblog. com! SCOTUSblog is the first blog to ever receive the Peabody Award:
We are humbled and very grateful to receive the Peabody Award for excellence in electronic media.