USA: Perspectives on Today’s Supreme Court Hearing on Defense of Marriage Act

Written by scott on March 27th, 2013

Defense of Marriage ActNow that the Defense of Marriage Act hearing is over, analyses are pouring in.

Over at Equality on Trial, Jacob Combs takes a look at several components. First, the standing issue:

Long story short, it seemed unclear from today’s oral arguments whether the Supreme Court will get past the standing questions to consider DOMA on the merits. From the Justices’ questioning, there didn’t look like much support for the contention that BLAG has standing to join the case as a party. But the question of whether the United States can appeal a decision that it agrees with is much more central to the Windsor case: if the Court finds the appeal was invalid, it simply will not be able to rule on the merits of the law. Justice Kennedy and the court’s liberals did seem to lean towards the idea that the Court does have jurisdiction since there was a fiduciary injury to the United States. That means the Court will probably issue a decision on the merits.

Second, the merits of the case:

Because of the Justices’ skepticism regarding Clement’s arguments in favor of BLAG, it seems quite likely that there are at least five votes on the Court to invalidate DOMA, especially if such a decision were based on issues of federalism rather than an equal protection question. Based on today’s arguments, it seems possible that Chief Justice Roberts would join such an opinion striking down the law, and that Justice Kennedy would rather rule on federalism grounds than equal protection grounds if he can. Justice Alito’s questions were less clear, but also seemed to open the door to the idea that he could rule against the law as well.

Over at The Dish, Andrew Sullivan has his own take on what went down today:

End of DOMA? My own impression of the arguments was that DOMA can survive this court only on the procedural grounds I don’t claim to fully understand. The best argument for it was Alito’s concern about soldiers or federal officials across state lines. But these grotesque discrepancies were allowed for in the case of race for over a century, and are still allowed for differences in age limits, consanguinity rules, etc. A unique federal definition of civil marriage both trumps the rights of states to determine this matter as they always have in this country, and was explicitly defended at the time on unconstitutional grounds of moral disapproval. What’s left?

Tara Culp-Ressler takes apart the comparisons to Roe v Wade at Think Progress:

Even aside from the unfounded myths about the history of the United States’ abortion rights battles, there’s even more evidence to suggest that Americans won’t revolt if the Justices advance LGBT equality. Although abortion and gay marriage have been the two pillars of the Religious Right’s “values issues” for the past two decades, serving as political wedge issues that go hand-in-hand, that’s not necessarily the case anymore. “As recently as 2004, we talked about abortion and same sex marriage in the same breath,” Daniel Cox, the Public Religion Research Institute’s research director, told the Washington Post. “They were the values issues. Now, it doesn’t make sense to lump them together anymore. We’ve seen a decoupling.”

Lisa Keen, writing for the Dallas Voice, declares “DOMA is Dead”:

Jon Davidson, legal director for Lambda Legal, said he was “very encouraged” by the argument. “When it comes to the merits, I think there are at least five justices who are prepared to strike down Section 3 of DOMA,” he said. “One of the things that Justice Ginsburg said at the end, about the beginning of the sex discrimination cases, the court did strike down laws that discriminated based on sex based on rational basis, and saw it as discrimination.” Mary Bonauto, head of civil rights for Gay & Lesbian Advocates & Defenders, said she thought the questioning was “vigorous” on the procedural issue of standing. On the issue of DOMA’s constitutionality, she said she thought Justice Kagan “called out” the discriminatory statement in the House report. “Overall, they were asking the right questions and the right themes were in play,” said Bonauto.

WonkBlog’s Ezra Klein flags the eight most important exchanges from today’s hearing:

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.

See the full list at the link above.

At, Ari Ezra Waldman has a nice summary of the hearing, pointing out one of the conservative Justices who questioned the rationale for DOMA:

Shortly after came a question from Justice Alito — what is the purpose of something like federal favorable tax treatment for married couples: is it to foster traditional marriage or to focus on support households that function as a single economic unit? — that may be that rare instance where a question can tell us where the Court is going. The conservative Alito was expressing the point we have discussed before that DOMA cannot be about encouraging heterosexuals to marry because it deals with the benefits given after two people decide to get married. Those benefits are about a married couple functioning together, not about the sex or sexual orientation of those married. This is a conservative justice criticizing the marriage rationale for DOMA. I think we saw evidence of DOMA’s downfall here.

Nicole Flatow at Think Progress notes that Justice Roberts pursued the right-wing talking point that the gays are too powerful to deserve equality:

Roberts suggested that gays and lesbians must be “politically powerful” because politicians are “falling all over themselves” to endorse gay marriage, according to a tweet by Mother Jones’ Adam Serwer. The brief by Paul Clement, who represented the House of Representatives in defending DOMA, had reasoned that gays and lesbians are winning political battles and “have the attention of lawmakers,” an absurd claim since the “power” assertion is factually inaccurate, and because such an argument would also cancel out protections for racial minorities and women.

Joe.My.God summarizes the reactions coming from LGBT rights groups:

GLAD: For every day DOMA continues to be enforced by our federal government, thousands of legally married same-sex couples are denied critical protections. DOMA is a blatantly discriminatory law which targets a particularly disliked group, impacts important personal interests, and represents a one-time departure from the usual process of allocating federal rights and benefits. Same-sex couples who are legally married in their home states should be treated like all other married couples in this nation – with respect and dignity.

And Morgan Welch at Dot429 takes a look at what a post-DOMA world would be like:

As of now, federal law forbids the legal recognition of same-sex couples, denying them the 1,138 benefits, rights and protections that marriage brings. While couples in states with marriage equality do enjoy most of the benefits, it’s still not completely equal; no matter what their own individual state says, DOMA disallows them to reap any of the federal benefits that is the right of heterosexual couples in all 50 states. Its elimination could change some or all of that. Perhaps the most obvious federal benefit of marriage is taxes; even legally married gay couples can’t file jointly due to DOMA, and that means fewer tax breaks. This is a burden not only on couples, but on the companies that employ them.

Add to the list “respect”. For our relationships, for our love, and for our commitments to one another.

Now we wait for June (or maybe early July).


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