1. Is there anyone to defend this thing?
The Bipartisan Legal Advisory Group (BLAG) and its lawyer, Paul Clement, have been defending the Defense of Marriage Act as the Obama administration has declined to argue for its constitutionality. But this raises the question of whether BLAG has standing to defend the act. Vicki Jackson, a Harvard law professor who filed a friend-of-the-court brief in the case, was invited to deliver oral arguments to show that the case should be thrown out for lack of a significant conflict between the government (as represented by Obama) and the plaintiffs:
JUSTICE BREYER: Why -- why wouldn't - imagine -- there in Article II, it says that the President shall take care that the laws be faithfully executed. So the President has worked out -- I, personally, and for reasons in -- in my department, others think that this law is unconstitutional, but I have this obligation. And because I have this obligation, I will not, I will continue to execute this law. I will continue to execute it though I disagree with it. And I execute it until I have an authoritative determination not to.
Now, how is that different from a trustee who believes that he has an obligation to a trust to do something under a certain provision that he thinks doesn't require that, but, you know, there's a debate about it, but he says, I have the obligation here. I'm going to follow this through.
There'd be standing in the second case for any fiduciary, despite his personal beliefs, to continue. We'd understand that and say there was standing. Why don't we here?
MS. JACKSON: Well, the trustee, I think, would be able to go to a court of first instance to get an adjudication of the claim. What I'm submitting to you that the trustee could not do, after getting the first -- the judgment in the court of first instance stating what the remedy -- what the liability is, then seek review of that judgment, but ask only for it to be affirmed.
JUSTICE BREYER: And that's the part I don't understand. For -- if, in fact, as you agree, the trustee or other fiduciary in my example would indeed have standing to act according to the law, even though he thinks that that law is unconstitutional because of his obligation such as under Section 2. You agree he has the -- he has -- there is standing when he goes into court in the first place, which surely he could interpret Article II as saying and you follow it through as long as you can do it, which includes appeals, until the matter is determined finally and authoritatively by a court. If you could do the first, what suddenly stops you from doing the second?
2. Can state and federal marriages be different?
The concerns about standing, and issues of whether the case should be dismissed for lack of controversy, occupied the court until about page 55 of the transcript. That part's sort of dull, so let's skip ahead to the debate on the merits. Ruth Bader Ginsburg pressed Clement, BLAG's lawyer, on whether it was fair for there to be different state and federal definitions of marriage:
JUSTICE GINSBURG: Mr. Clement, the problem is if we are totally for the States' decision that there is a marriage between two people, for the Federal
Government then to come in to say no joint return, no marital deduction, no Social Security benefits; your spouse is very sick but you can't get leave; people -- if that set of attributes, one might well ask, what kind of marriage is this?
MR. CLEMENT: And I think the answer to that, Justice Ginsburg, would be to say that that is a marriage under State law, and I think this Court's cases when it talks about the fundamental right to marriage, I take it to be talking about the State law status of marriage; and the question of what does that mean for purposes of Federal law has always been understood to be a different matter. And that's been true certainly in a number of situations under a number of statutes, so it's simply not the case that as long as you are married under State law you absolutely are going to be treated as married.
3. Is DOMA a violation of states' rights?
Anthony Kennedy sure seemed to think so:
JUSTICE KENNEDY: But I -- I understand the logic in your argument. I -- I hadn't thought of the relation between Section 2 and Section 3 in the way you just said. You said, now Section 2 was in order to help the States. Congress wanted to help the States. But then Section 3, that Congress doesn't help the States which have come to the conclusion that gay marriage is lawful. So that's inconsistent.
MR. CLEMENT: No, no. They treat them -- which is to say they -- they are preserving, they are helping the States in the sense of having each sovereign make this decision for themselves.
JUSTICE KENNEDY: We're helping the States do -- if they do what we want them to, which is -- which is not consistent with the historic commitment of marriage and -- and of questions of -- of the rights of children to the State.
MR. CLEMENT: With respect, Justice Kennedy, that's not right. No State loses any benefits by recognizing same-sex marriage. Things stay the same. What they don't do is they don't sort of open up an additional class of beneficiaries under their State law for -- that get additional Federal benefits. But things stay the same. And that's why in this sense --
JUSTICE GINSBURG: They're not -- they're not a question of additional benefits. I mean, they touch every aspect of life. Your partner is sick. Social Security. I mean, it's pervasive. It's not as though, well, there's this little Federal sphere and it's only a tax question.
It's -- it's -- as Justice Kennedy said, 1100 statutes, and it affects every area of life. And so he was really diminishing what the State has said is marriage. You're saying, no, State said two kinds of marriage; the full marriage, and then this sort of skim milk marriage.
4. Was DOMA homophobic in intent?
Elena Kagan raised the issue of whether the fact that some supporters of DOMA were motivated by homophobia makes the law more suspect, as it may be seen as targeting a protected class. Clement argued that motive was irrelevant, as long as the law has another rational purpose:
JUSTICE KAGAN: Well, is what happened in 1996 -- and I'm going to quote from the House Report here -- is that "Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality."
Is that what happened in 1996?
MR. CLEMENT: Does the House Report say that? Of course, the House Report says that. And if that's enough to invalidate the statute, then you should invalidate the statute. But that has never been your approach, especially under rational basis or even rational basis-plus, if that is what you are suggesting.
This Court, even when it's to find more heightened scrutiny, the O'Brien case we cite, it suggests, Look, we are not going to strike down a statute just because a couple of legislators may have had an improper motive. We're going to look, and under rational basis, we look: Is there any rational basis for the statute?
And so, sure, the House Report says some things that we are not -- we've never invoked in trying to defend the statute. But the House Report says other things, like Congress was trying to promote democratic self-governance.
5. The Obama administration doesn't think there's a federalism problem here.
Donald Verrilli, the solicitor general, outlined the Obama administration's case that the law is unconstitutional, but made it clear that he disagreed with the notion that DOMA violates norms of federalism and impinges on the rights of the states:
CHIEF JUSTICE ROBERTS: Suppose your -- you agree that Congress could go the other way, right? Congress could pass a new law today that says, We will give Federal benefits. When we say "marriage" in Federal law, we mean committed same-sex couples as well, and that could apply across the board.
Or do you think that they couldn't do that?
GENERAL VERRILLI: We think that wouldn't raise an equal protection problem like this statute does, Mr. Chief Justice.
CHIEF JUSTICE ROBERTS: Well, no, my point is: It wouldn't -- you don't think it would raise a federalism problem either, do you?
GENERAL VERRILLI: I don't think it would raise a federalism problem.
CHIEF JUSTICE ROBERTS: Okay.
SOLICITOR GENERAL VERRILLI: And I -- but the key for the -- for the -- our purposes is that, in addition to denying these fundamental important -- fundamentally important benefits, is who they are being denied to.
CHIEF JUSTICE ROBERTS: So just to be clear, you don't think there is a federalism problem with what Congress has done in DOMA?
GENERAL VERRILLI: We -- no, we don't, Mr. Chief Justice.
6. But Verrilli is sure that DOMA violates equal protection.
That was the crux of the Obama administration's case against the law. Verrilli argued forcefully that the law is illegitimate discrimination against gay men, lesbians and bisexuals:
JUSTICE SOTOMAYOR: General, your bottom line is, it's an equal protection violation for the Federal Government, and all States as well?
GENERAL VERRILLI: Yes, Your Honor, and that's the -- we took the position we took yesterday with respect to marriage -- the analysis -
JUSTICE SOTOMAYOR: Is there any argument you can make to limit this to this case, vis-à-vis the Federal Government and not the States?
GENERAL VERRILLI: Well, as we said yesterday, we think it's an open question with respect to State recognition of marriage, and they may well be able to advance interests -- they may be able to advance it. I guess I shouldn't say "may well," because I do think it would be difficult, as we said yesterday. They may be able to advance interests that would satisfy heightened scrutiny and justify non-recognition --
JUSTICE BREYER: Then yet -- but here --
GENERAL VERRILLI: But -- but here, the Federal Government's not in the same position because as BLAG concedes, the Federal Government at the most can act at the margins in influencing these decisions about marriage and child rearing at the State level. And the Second Circuit and the First Circuit both concluded that there's no connection at all, and that's of course because Section 3 doesn't make it any more likely that unmarried men and women in States -- that -- unmarried men and women who confront an unplanned pregnancy are going to get married.
And -- and elimination of Section 3 wouldn't make it any less likely that unmarried men and women are going to get married. It doesn't have any effect at all. It doesn't have any connection at all.
7. The actual plaintiff doesn't want to talk federalism either.
Roberta Kaplan, Edie Windsor's lawyer and thus the representative of the actual plaintiff in the case, similarly didn't want to make the case on federalism grounds. She wanted to show that DOMA is discriminatory, not that it's unfair to states:
CHIEF JUSTICE ROBERTS: I just am asking whether you think Congress has the power to interfere with the -- to not adopt the State definition if they're extending benefits.
Do they have that authority?
MS. KAPLAN: I think the question under the Equal Protection Clause is what -- is what the distinction is.
CHIEF JUSTICE ROBERTS: No, no. I know that.
You're following the lead of the Solicitor General and returning to the Equal Protection Clause every time I ask a federalism question.
8. Should the court stay cautious?
That's the question Stephen Breyer asked Kaplan:
JUSTICE BREYER: What -- what do you think of his -- the argument that I heard was, to put the other side, at least one part of it as I understand it said: Look, the Federal Government needs a uniform rule. There has been this uniform one man-one woman rule for several hundred years or whatever, and there's a revolution going on in the States. We either adopt the resolution -- the revolution or push it along a little, or we stay out of it. And I think Mr. Clement was saying, well, we've decided to stay out of it --
MS. KAPLAN: I don't --
JUSTICE BREYER: -- and the way to stay out of it is to go with the traditional thing. I mean, that -- that's an argument. So your answer to that argument is what?
MS. KAPLAN: I think it's an incorrect argument, Justice Breyer, for the --
JUSTICE BREYER: I understand you do; I'd like to know the reason.
MS. KAPLAN: Of course. Congress did not stay out of it. Section 3 of DOMA is not staying out of it. Section 3 of DOMA is stopping the recognition by the Federal Government of couples who are already married, solely based on their sexual orientation, and what it's doing is undermining, as you can see in the briefs of the States of New York and others, it's undermining the policy decisions made by those States that have permitted gay couples to marry.