USA: Is DOMA Going Down? More From the US Supreme Court Hearing

Written by scott on March 27th, 2013

Defense of Marriage ActThe US Supreme Court hearing on Defense of Marriage Act is over, and the stories are flowing out.

LGBTQ Nation confirms that the Court is skeptical of the law:

The motivation behind the 1996 federal law, passed by large majorities in Congress and signed by President Bill Clinton, was questioned repeatedly by Justice Elena Kagan. She read from a House of Representatives report explaining that the reason for the law was “to express moral disapproval of homosexuality.” The quote produced an audible reaction in the courtroom.

Ironically, Paul Clement, the House GOP lawyer arguing for DOMA, cast it as heloful to gay and lesbian couples:

Paul Clement, representing the House Republican leadership in defending the law, said the more relevant question is whether Congress had “any rational basis for the statute.” He supplied one, the federal government’s interest in treating same-sex couples the same no matter where they live. Clement said the government does not want military families “to resist transfer from West Point to Fort Sill because they’re going to lose their benefits.” The U.S. Military Academy at West Point is in New York, where same-sex marriage is legal, and Fort Sill is in Oklahoma, where gay marriages are not legal.

I’m sorry, but that’s a rich load of crap. DOMA’s true purpose is to treat gay and lesbian couples equally in every state, so we don’t have to worry about losing our benefits? Seriously?

AmericaBlog says Defense of Marriage Act is in trouble, via various tweets from inside the courtroom:

ScotusBlog: Final update: #scotus 80% likely to strike down #doma. J Kennedy suggests it violates states’ rights; 4 other Justices see as gay rights.

Michael Roston: “There are two kinds of marriage. Full marriage and the skim milk marriage.” – Justice Ruth Bader Ginsburg

Glenn Greenwald: Predicting court outcomes from Oral Argument is always risky, but it does look pretty bad for DOMA, a noxious law

See the rest of the tweets at the link above.

Jacob Combs from Equality on Trial chimes in:

Nevertheless, there appeared to be five clear votes on the Court for invalidating DOMA, either on issues of federal overreach or on equal protection grounds. On the latter issue, the Court spent some time-but not much-discussing whether laws that classify based on sexual orientation should be subject to the more searching judicial review of heightened scrutiny. Justice Kagan in particular questioned whether or not Congress might have had other motives in passing DOMA besides uniformity; Justice Sotomayor quoted the House record from when the law was enacted, which stated that the law was intended to “express[] moral disapproval of homosexuality.” But Chief Justice Roberts asked both Verrilli and Kaplan if the legislators who voted in favor of DOMA could be explicitly accused of animus, which both lawyers disavowed. Breyer pressed Clement for a “list of reasons” why Congress would want to limit federal marital benefits to opposite-sex couples only. From today’s arguments, it does seem that DOMA is on its last legs and that the Supreme Court will likely strike it down this summer if it decides Edie Windsor’s case on the merits.

Queerty reports on Edie Windsor’s testimony:

Edith “Edie” Windsor, her attorneys argued, was unfairly forced to pay more than $363,000 in federal estate taxes after the death of her spouse, Thea Spyer, as the IRS did not recognize Windsor as a surviving spouse under DOMA. Windsor’s attorney claimed this was in violation of the equal protection principles guaranteed by the U.S. Constitution. “Thea and I were legally married. We loved and cared for each other for over 40 years. We deserve to be treated equally by our country, and not like second-class citizens,” Windsor, 83, said. “While Thea obviously can’t be here today, I know how proud she would be to see how far we have come for us to be standing on the steps of the Supreme Court asking for fair treatment of our marriage.”

Windsor herself things we’re headed for a win. The Advocate reports:

Edie Windsor got loud cheers as she exited the Supreme Court with her lawyer and offered an evaluation of how the hearing went: “I felt very respected, and I think it’s gonna be good.” Her lawyer Roberta Kaplan, who is gay, told reporters she also had a sense that “it went well.”

The Advocate has some photos from outside the courtroom this morning.

We’ll have more for you later in the day.


Leave a Comment