For the second day in a row, the Supreme Court is hearing oral arguments related to the legalization of gay marriage -- this time focusing on the 1996 Defense of Marriage Act and whether Congress may withhold federal benefits from legally wed gay couples.
Tuesday’s arguments on California’s Proposition 8 focused on those who want to marry; the DOMA case concerns those who are already married. We'll be providing live updates on the arguments inside and the scene outside the court all morning. For more coverage, read Robert Barnes' story.
Taking another tack, Chief Justice John Roberts suggested that the recent shift in U.S. public opinion on gay marriage stemmed from influential lobbying by gay-rights groups.
"As far as I can tell, political figures are falling over themselves to endorse your side of the argument," Roberts said, referring to recent announcements by prominent politicians including former secretary of state Hillary Clinton (D) and Sen. Rob Portman (R-Ohio), among others.
"I think it was from a moral understanding today that gay people are no different," Roberta Kaplan, the plaintiff Edith Windsor's attorney, replied.
Chief Justice John Roberts posed the same question to plaintiff Edith Windsor's attorney Roberta Kaplan that he asked of Solicitor General Donald B. Verrilli, Jr. -- whether lawmakers were bigoted in passing DOMA.
"So eighty-four senators based their votes on moral disapproval of gay people?" he asked.
Kaplan replied it was more a matter that "times can blind," adding these lawmakers based their votes on "an understanding that gay couples are different from straight couples... I think it was based on a misunderstanding of gay couples."
When plaintiff Edith Windsor's attorney Roberta Kaplan took her turn before the justices in arguing that DOMA should be struck down, Chief Justice John Roberts pressed her on whether the federal government could provide marital recognition to gay couples even when the states in which they lived denied such rights.
Kaplan replied "the federal government could extend benefits to same-sex couples to equalize things in a programmatic way," but stopped short of endorsing the idea of a new system establishing federal marriages.
"I'm not sure the federal government could create a new federal marriage," she said.
We're still running through the highlights of today's oral arguments. But you can listen to the full audio of the proceedings here.
When Donald Verrilli said the intention to discriminate against gays "is quite clear, in black and white in the pages of the House report" on DOMA, Chief Justice John Roberts questioned that assertion.
"So that's what motivated 84 senators, and the president who signed it into law?" Roberts asked.
Verrilli replied that while they may not have been inspired by "animus or hostility" towards gay couples, the end result was clear. "This is discrimination in its most very basic aspect."
Justice Samuel Alito sketched out a difficult situation: three members of the armed forces, all of whom are gay, are injured in the same event. One has a legal spouse under state law; one has a domestic partner under state law; and one is unmarried because that couple's state bans any sort of same-sex union.
"Your argument is the first should be admitted but the other two should be left out?" Alito asked Donald Verrilli.
"The question before the court is whether DOMA violates the principle of equal protection," Verrilli said, adding the hypothetical case "would be subject to an equal protection" review.
Solicitor General Donald B. Verrilli, Jr. began his remarks by arguing the Court should strike down DOMA on the basis of equal protection. But Chief Justice John Roberts pressed Verrilli on whether the law violated the principle of federalism, which defines the relationship between the federal government and the states.
"You don't think there's a federalism problem of what's being done in DOMA," Roberts asked.
"The problem is an equal protection problem with regard to DOMA," Verrilli replied.
"You don't think federalism comes into play in any of this?" the chief justice pressed.
"We don't think the federal government should be the 51st state," Verrilli said.
At one point Justice Antonin Scalia stepped in to help Paul Clement, as the lawyer defending DOMA discussed the issue of uniformity yet again with Justice Stephen Breyer. Breyer poked fun of Clement's argument in favor of uniform treatment. He asked whether it applied to court decisions as well as changes in state laws regarding marriage, asking him to "justify this particular effort to define uniformity."
Scalia stepped in, reviving the specter of Hawaiians establishing a new national definition of marriage through a single political act.
"I thought you didn't want the voters in one state to dictate to voters in another state," Scalia told Clement.
As the liberal justices sparred with Clement over the federal government's right to set the terms of what constitutes marriage, he argued that his side was not arguing federal authorities should take over regulating the institution.
"It doesn't have the authority to define marriage as such, but that's not what DOMA does," he said.
Justice Elena Kagan broached the question of whether lawmakers might have been motivated by prejudice when they passed DOMA in 1996, which would compel the court to subject the law to a higher level of scrutiny.
"When Congress targets a group that is not everyone's favorite group...We look at those cases with some vigor," she said.
Kagan read directly from the House report questioning the morality of homosexuality, asking Paul Clement if he thought "this sends up a red flag that something is going on."
Clement countered that his side was not making the kind of moral arguments contained in the House report, emphasizing it was the move in Hawaii to legalize same-sex marriage that prompted Congress to act.
"You have to understand in 1996, something's happening," he said.
Kagan, however, suggested "moral disapproval" was a key factor in the act's passage.
"Is that what was going on in 1996?" she asked, prompting a murmur from the audience.
"If that's enough to invalidate the statute, you should invalidate the statute," Clement replied.
House Minority Leader Nancy Pelosi (D-Calif.), who attended today's oral arguments at the Supreme Court, predicts that the Defense of Marriage Act will not last much longer.
"I'm very optimistic that DOMA will be struck down," she told reporters back at the Capitol.
Of former solicitor general Paul Clement's defense of the law, she opined, "What a stale role to play in life."
Justice Ruth Bader Ginsburg questioned the idea that denying same-sex marriage is cost-free, reminding Paul Clement of Kennedy's point that the federal marriage definition applies to 1,100 statutes "and it affects every aspect of life. So it really determines what the state defines as marriage."
Justice Sonia Sotomayor questioned the very right of the federal government to weigh in on the definition of marriage, asking, "What gives the federal government the right to be concerned at all about what the definition of marriage is?"
"I'm not suggesting the federal government has any special authority to define marriage," Paul Clement said. "The federal government recognizes it's a big player in the world. It has a lot of programs that could give states an incentive to" broaden the definition of marriage.
Justice Anthony Kennedy interjected then, telling Clement, "I see illogic in your argument" since it implied that the federal government might be providing states with both an incentive and disincentive when it came to defining marriage.
"With respect, Justice Kennedy, that's not right," Clement said. "No state loses any benefits by deciding same-sex marriage."
Justice Stephen Breyer also took issue with Paul Clement's emphasis on the importance of uniformity, noting it could be just as easy to deny 20 or 30 percent of the U.S. population the right to marry.
"You're saying uniform treatment is good enough, no matter how odd, not matter how irrational," Breyer asked. "You see where I'm going with that?"
"I see exactly where you're going, Justice Breyer," Clement responded, prompting laughter from the crowd.
When Paul Clement argued that the Defense of Marriage served the federal government's interest in having "unified treatment of individuals across state lines," Justice Sonia Sotomayor expressed skepticism.
"But that's begging the question, because you're treating New York couples differently from Nebraska couples," Sotomayor said, adding that when it came to her theoretical example, "I pulled that out of a hat."
"They're only different in how their marriage is treated under state law," Clement replied.
Edith Windsor, the 83-year-old widow whose case is being used to challenge the Defense of Marriage Act, told reporters after the oral arguments that she was optimistic.
"I think it went beautifully," she said. "I think it's gonna be good." The questions were not hostile, she recalled, "I felt we were very respected."
Showing the crowd a diamond brooch given to her by her late wife on their engagement in 1967, Windsor explained why full marriage benefits were so important to her. She and Thea Spyer had been engaged for forty years when they were legally wed, in 2007. But every gay couple she'd spoken to had the same experience: "Marriage is different," Windsor said. "It's a magic word ... It is magic."
And so, "today is like a spectacular event for me," she said. She believed, she said, that Spyer's spirit was watching over the proceedings.
Her attorney, Roberta Kaplan, said she wasn't in the business of making predictions but that "the justices asked all the questions we expected them to ask, and we had good answers." She concluded, "I think it was good."
Justice Anthony Kennedy -- likely the key vote in the Court's final decision -- questioned whether the Defense of Marriage Act amounted to a federal overreach. He noted that there are 1,100 federal laws affected by the federal government's definition of marriage, saying it means "the federal government is intertwined with citizens' daily lives" and runs "a real risk of coming into conflict with the state's ability to regulate marriage."
The crowd cheers people exiting the Supreme Court vine.co/v/bjimVjg03ex
— Mark Berman (@themarkberman) March 27, 2013
The arguments ended at 12:15 p.m, but because reporters were not allowed to file dispatches while inside the rooms, we'll continue to have updates on what happened inside.
After a break of roughly three minutes, Paul Clement returned to argue the merits of the case before the Court. One minute after he began to speak, Justice Ruth Bader Ginsburg spoke of the predicament a gay spouse would face when denied basic rights including the ability to take time off work to care for an ailing spouse.
"With [those] sort of attributes, one might well ask, 'What sort of marriage is this?" Ginsburg inquired.
"The answer, Justice, is that's a marriage under state law," Clement replied.
Ginsburg said that the lack of federal benefits for gay couples creates a two-tiered system -- "full marriage and the skim-milk marriage."
While the Supreme Court weighs in on gay marriage, Sen. Kay Hagan (D-N.C.) became the latest Democrat to support same-sex unions.
Hagan’s announcement carries significant political weight, given that she is a top target for Republicans in 2014, and North Carolina, which leans culturally conservative, approved a state initiative last May that would amend the state constitution to define marriage as between a man and a woman. More than 60 percent of North Carolina voters supported the ballot initiative.
Same-sex marriage advocates are dominating the crowd outside the Supreme Court, a welcome sight for two relative newcomers to D.C.
Emmett Patterson, 19, and Lex Loro, 18, are freshmen at American University. She's from San Antonio and he's from Washington, Pa., so this is something they couldn't see back home, Loro said.
"It's comforting to me...being out here today, it's really special," she said. "This is the real deal. This is federal legislation we're looking at."
Patterson is heading to the office after the rally; he jokingly called it "a casual, historic LGBT pit stop on my way to work."
The lawyers at SCOTUSblog think that the Defense of Marriage Act will probably be struck down:
— SCOTUSblog (@SCOTUSblog) March 27, 2013
We've covered the initial arguments over standing and now we're getting to the meat of the case, the questions of constitutionality.
The arguments on standing concluded by circling back to Vicki Jackson, who warned that if the court decides it has jurisdiction here and that the House has standing, that the federal courts could be asked to start weighing in on all kinds of “inter-branch conflicts.”
Paul Clement, the attorney representing the House leaders, made his argument in favor of standing. “The House is the proper party to defend” a statute passed by Congress, he said. Justice Sonia Sotomayor interjected that it is actually the solicitor general who typically defends a statute.
This sparked a discussion about the circumstances under which the House can intervene in a case. Clement argued that the House has a wide berth here, but that it tends to act conservatively. In the 30 years since the Chadha ruling, he said, the House has only intervened as a party this way 12 times.
Justice Anthony Kennedy wondered: would it be kosher for the Senate to take the other side and be pitted against the House? Clement said no.
Justice Stephen Breyer raised the Chadha case, which will come up repeatedly for the rest of this conversation. This is a 1983 case in which immigration authorities halted the deportation of a foreign national, Jagadish Rai Chadha, but the House vetoed that decision. This put the House and INS on opposite sides of the case, which is similar to the situation today: the Obama administration believes DOMA is unconstitutional, whereas House leadership believes it is constitutional. The Supreme Court eventually sided with the INS.
At 10:30 a.m. Justice Elena Kagan brought up the $300,000 tax bill petitioner Edith Windsor owes because her marriage to Thea Speyer was not recognized by the federal government. She gets the first laugh of the day when she points out that it doesn't matter “whether the government is happy or sad” to have to pay that money back. She's referring to the fact that the Department of Justice is enforcing DOMA while declaring part of the law unconstitutional.
Oral arguments began on the Defense of Marriage Act at at 10:18. The first 50 minutes centered primarily on technical questions, including whether the Bipartisan Legal Advisory Group – a group of leaders in the House – has standing to be a party in the case. Up first was Vicki Jackson, the attorney appointed by the court to argue that it does not have standing. She made the case that the court should await “another case, another day" on DOMA.
Folks here speaking against gay marriage may seem (very) outnumbered, but advocates keep lining up to listen. The most popular photo subjects outside seem to be children, puppies, and anti-same sex marriage signs.
A young girl asks her mom as they pass anti-gay marriage protesters. "But why are those people so mean?" The mother chuckled, shook her head.
Justice Antonin Scalia remarks on the fact that the Obama administration has declared part of the Defense of Marriage Act unconstitutional and refuses to defend it in court -- but still enforces the law.
Sri Srinivasan, deputy solicitor general, argued that House has standing in this case. He had hardly begun when the justices leap on him for the administration’s awkward position in this case. Justice Kennedy called it “questionable practice,” and Justice Scalia spoke critically of this “new world.”
Fordham law professor Abner Greene has suggested that the administration should end this "institutional schizophrenia" by refusing to enforce DOMA, giving Congress standing to sue the president.
A limited number of reporters have been able to follow this morning’s proceedings from inside the courtroom and an overflow room. But they’re not allowed to file dispatches while inside the rooms. So our reporters will be sending updates on a delayed basis, providing highlights of these historic arguments.
Harvard law professor Vicki Jackson is arguing that the court does not have jurisdiction to decide the case. The lawyers for the plaintiff and the defendants will speak after her. SCOTUSblog reports that there's no sign of how the court is leaning yet:
— SCOTUSblog (@SCOTUSblog) March 27, 2013
Harvard law professor Vicki Jackson was chosen to argue that the Supreme Court does not have jurisdiction over the challenge to the Defense of Marriage Act. Neither the anti-DOMA plaintiff nor the pro-DOMA defendant argued that position, and the court wanted to hear it.
Her brief argues that the defendant, the House’s Bipartisan Legal Advisory Group, does not have standing to defend the law because House members have not suffered the kind of injury required to bring a case to the court. The executive branch doesn't either, she said, because it agrees with the plaintiff and lower court rulings.
Jackson has served as a deputy assistant attorney general in the Office of Legal Counsel and as a clerk for U.S. Supreme Court Justice Thurgood Marshall.
The crowd on both sides of First Street seems calm and, at times, joyous.
Multiple demonstrators and observers have said the same thing: It's more orderly than it was on Tuesday, with more police on the scene. On Tuesday, buses carrying same-sex marriage opponents carted through the area. On Wednesday, the crowd seemed largely made up of same-sex marriage advocates.
Many people making their way through the crowd stopped to snap photos -- photos of children and dogs, photos of each other, photos of the scene.
Kristy Kennedy and Ginger Noce, of D.C., said it felt calmer on Wednesday.
The two came with their children Josh, 17; Zach, 13; and Madison, 11.
The five of them stood across the street from the court, holding up signs in favor of legalized marriage. They were a popular sight on the street, with passers by snapping photos and even posing with them.
Before tackling DOMA, the Supreme Court ruled on an unrelated case. The AP reports:
The Supreme Court says the federal government can be sued for abuse claims against prison guards.
The high court on Wednesday unanimously ruled for Kim Lee Millbrook, a prisoner at the federal prison in Lewisburg, Pa. Millbrook accused prison guards of sexually assaulting him in May 2010. Prison officials said Millbrook’s claim was unsubstantiated.
Generally law enforcement officers cannot be sued for actions performed in the line of duty, so this case is significant. Millbrook wrote his petition in longhand and has previously been warned about filing frivolous suits.
Wisconsin's Tammy Baldwin, the first openly gay senator in Congress, walks into the Supreme Court:
— Sen. Tammy Baldwin (@SenatorBaldwin) March 27, 2013
How did the Defense of Marriage Act end up at the Supreme Court? It's because of Edith Windsor, an 83-year-old widow and the plaintiff in United States v. Windsor.
Windsor married Thea Spyer, her partner of 40 years, in 2007. (Spyer proposed in 1967 with a diamond brooch.) Their New York Times wedding announcement explains how they met in 1965 at a Manhattan restaurant:
Adjourning to a friend’s apartment that night, Dr. Spyer and Ms. Windsor danced until the impromptu party ended, finally “dancing with our coats on, and other people standing at the door, annoyed, waiting for us,” Ms. Windsor recalled, adding, “She was smarter than hell, beautiful — and sexy.”
Dr. Spyer recalled of Ms. Windsor that night, “We danced so much and so intensely that she danced a hole through her stockings.”
When Spyer died in 2009, she left her estate to Windsor, who got hit with a $360,000 tax bill. Because of DOMA's definition of marriage as “a legal union between one man and one woman,” federal tax benefits that shield married couples from the estate tax didn't apply. A federal court in New York already ruled in Windsor's favor; she is hoping to make history by taking it to the Supreme Court.
— Arthur Lien (@Courtartist) March 27, 2013
Members of the Supreme Court bar get to wait in a short line of lawyers instead of the long public line outside the court. Once inside, they get better seats.
The crowd in front of the Supreme Court seems, to some gathered on First Street NE, to be tipped in favor of same sex marriage advocates.
Mark Reed-Walkup, who married his husband Dante in D.C. in 2010, said he thought the turnout seemed stronger Wednesday for people cheering for DOMA to be overturned.
"We're here to witness history," said Reed-Walkup, 53, of Dallas.
Emily Anderson and several others held up a United For Marriage banner, their backs to Westboro Baptist Church demonstrators.
At one point, a throng chanting about equality gathered behind and around the WBC protestors.
Anderson, 24, who lives in Baltimore, said she slept on the steps of the court on Monday night.
"I feel wonderful," she said.
The crowd stretches along First Street NE, with same sex opponents largely on the north end of the block and advocates on the southern end.
Demonstrators post with signs and wave flags, while commuters trying to get to work cross to the other side of the street to get by.
The most common sight here -- stretching from end to end of the crowd -- is a small American flag, held aloft and waving in the brisk morning wind.