This article first appeared in the St. Louis Beacon: Five U.S. Supreme Court justices seemed ready on Wednesday to strike down the Defense of Marriage Act (DOMA), but they didn’t agree on the reason.
Justice Anthony M. Kennedy, the swing justice, suggested that the law denying federal benefits to same-sex couples “intertwined” the federal government with “the citizens’ day-to-day life” in a way that violated federalism by interfering with the states’ power to regulate marriage, divorce and custody.
Attorney General Donald Verrilli didn’t do much to win over Kennedy, however, disavowing the federalism concern. Instead, Verrilli argued that the law violates the equal protection guarantee of the Fifth Amendment.
The four justices appointed by Democratic presidents appeared to see the law more along equal protection than federalism lines. But David Roland, director of the libertarian Freedom Center of Missouri, predicted that the liberals would join Kennedy.
“I think you might well see the liberal justices bite the bullet and agree with Kennedy on the matter of federalism just to ensure that DOMA goes down with a true majority opinion rather than a plurality,” he wrote in an email. “If that's the direction that will get Kennedy's vote (and I think it will), my guess is that it will be the winning issue.”
Gregory P. Magarian, a Washington University law professor, also predicted that DOMA would be thrown out.
“Strategically, the crucial thing about DOMA is that the court can strike down DOMA without altering anyone’s right to marry (or lack thereof),” he wrote. “Opponents of marriage equality will certainly accuse the court of activism, but they won’t be able to claim that the court has overridden the states’ prerogatives to define marriage. Removing DOMA will just enable the federal marriage-contingent benefits for people whose states have allowed them to marry.”
Magarian predicts the court will void DOMA but will not require same-sex marriage throughout the country.
The main impact of a decision striking down DOMA would be on same-sex couples in the nine states and the District of Columbia where same-sex marriage is recognized. Couples in other states that recognize same-sex unions, such as Illinois, would not be helped by a decision striking down DOMA. Nor would same-sex couples in states that deny same-sex marriages, like Missouri.
In his questions, conservative Justice Samuel Alito pointed out that striking down DOMA would not create marriage equality. In fact, it could create inequality, he pointed out.
Alito hypothesized three same-sex couples each of whom had a spouse injured in the war. Currently, none would be able to visit the spouse. If DOMA is knocked out, the spouse living in a state with same-sex marriage would be able to visit the injured spouse, but those in states with same-sex partnerships or that ban same-sex marriage would not be able to visit.
The case before the court involved Edith Windsor of New York city. In 2007 she married her partner of four decades, Thea Clara Spyer. When Spyer died in 2009, the Internal Revenue Service presented Windsor with an estate tax bill of $363,000. If the marriage had been a traditional one, Windsor would not have received a estate tax bill because of the spousal exemption. But DOMA blocked Windsor from claiming the exemption.
'Skim milk marriage'
Passed in 1996, DOMA required that the definition of marriage in 1,100 federal laws be restricted to traditional marriage between a man and a woman.
Paul Clement, who argued in favor of the law on behalf of members of the House, said the main purpose of the law was to create uniformity. In 1996 it appeared that Hawaii’s courts were about to recognize same-sex marriage, so Congress moved to clarify the federal definition.
But to Kennedy – who has both libertarian and federalist leanings – the change in that number of laws involved federal intrusion into traditional state police powers.
“When it has 1,100 laws,” he said, “which in our society means that the federal government is intertwined with the citizens' day-to-day life, you are at -- at real risk of running in conflict with what has always been thought to be the essence of the state police power, which is to regulate marriage, divorce, custody.”
Clement responded that Congress was merely making the rational choice that “we want to treat the same-sex couple in New York the same way as the committed same-sex couple in Oklahoma.”
Both Verrilli and Windsor’s lawyer, Roberta A. Kaplan, argued that Congress was motivated by antipathy toward gays rather than a desire for uniformity.
“DOMA was not enacted for any purpose of uniformity, administration, caution, pausing, or any of that,” said Verrilli. “It was enacted to exclude same-sex married, lawfully married couples from federal benefit regimes based on a conclusion that was driven by moral disapproval.”
Justice Elena Kagan pointed out that the House Report on the law said that "Congress decided to reflect“ the “collective moral judgment and to express moral disapproval of homosexuality."
Kagan said that when “Congress targets a group that is not everybody’s favorite group in the world, that we look at those cases with some….rigor to say, do we really think that Congress was doing this for uniformity reasons, or do we think that Congress’ judgment was infected by dislike, by fear, by animus, and so forth?”
Kagan added that the House report “sends up a pretty good red flag that that’s what was going on.”
This area of questioning goes to how much constitutional scrutiny the court should apply in reviewing DOMA. The more scrutiny the more likely that a law will be struck down.
In famous Footnote 4 to U.S. vs. Carolene Products, a Depression-era case involving laws against skimmed milk, the court said it would apply more constitutional scrutiny where it found “prejudice against discrete and insular minorities” with limited access to the political process.
Justice Ruth Bader Ginsburg made an apparent reference to the case when she said to some laughter that it sounded like Clement was talking about “two kinds of marriage; the full marriage, and then this sort of skim milk marriage.”
In other words, Ginsburg was suggesting, just as Verrilli did, that the court should apply greater scrutiny to DOMA because of the “terrible discrimination” that Verrilli said that gays had faced.
'Sea change' in public opinion
Rather than just requiring that DOMA be rational, the court should require some sort of more important reason for a law singling out a class of people subject to historic discrimination.
Clement joined by Chief Justice John Roberts and Justice Antonin Scalia countered that argument by talking repeatedly about the “sea change” in public opinion favoring same-sex marriage.
“As far as I can tell,” said the chief justice, “political figures are falling over themselves to endorse your side of the case.”
Clement closed this way: “That’s what the democratic process requires. You have to persuade somebody you’re right. You don’t label them a bigot. You don’t label them as motivated by animus. You persuade them you are right. That’s going on across the country… Allow the democratic process to continue.”
One thing that could stand in the way of a decision voiding DOMA would be if the court decided that there were procedural problems with the case because the Obama administration agreed with Windsor that DOMA is unconstitutional. That could mean that there was no case and could prevent the court from addressing the substantive issue.
