DOMA could be in peril

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By Kimberly Atkins
Dolan Media Newswires

Washington – The justices of the U.S. Supreme Court seemed poised Wednesday to strike down the federal Defense of Marriage Act as an unconstitutional intrusion on the authority of states to regulate marriage.

Such a ruling would allow the court to strike down the statute, which defines marriage as between a man and a woman under federal law, while still avoiding the issues that brought the case to the high court: whether the law violates the Equal Protection Clause, and what level of constitutional scrutiny should be applied in cases alleging discrimination against gay people.

The equal protection argument may not win a majority of the justices, based on comments during extended oral arguments in the case U.S. v. Windsor. But the court’s so-called “swing-voting” justice seemed persuaded by the states’ rights rationale.

“[When] the federal government is intertwined with the citizens’ day-to-day life,” Justice Anthony Kennedy said during oral arguments in the case, “you are 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.”

Regardless of the reasoning, if DOMA is found unconstitutional by the justices, the legal effect will be felt in a number of areas, from employment and tax rules to federal benefits and survivor rights.

“There are over 1,100 different federal laws that depend in some way or another on whether you’re married or not,” James Esseks, director of the LGBT Project at the American Civil Liberties Union, told reporters in front of the U.S. Supreme Court after arguments. “Your Social Security benefits and your survivor benefits change based on whether you’re married or not.

“Whether you get family medical leave to take care of your spouse, depends on whether the federal government recognizes that your spouse is your spouse. Veterans benefits change and, yes, taxes change as well.”

Though the Obama administration had stopped defending constitutional challenges to the law, House Republicans backed a successful measure to defend the law in federal court through the formation of a group called the House Bipartisan Legal Advisory Group (BLAG). After the 1st and 2nd U.S. Circuit Courts of Appeals ruled that the law was unconstitutional, the administration still petitioned the court to take up the constitutional challenge from the 2nd Circuit to settle the matter. The court obliged and granted certiorari.

‘Totally unprecedented’ challenge

Before getting to the merits of the case, the court has to trudge through a complicated set of jurisdictional issues: whether the BLAG has standing in the case, and whether the court lacks jurisdiction to hear it since the petitioner — the federal government — wants the court to affirm the 2nd Circuit ruling that the law is unconstitutional.

The latter question was put directly to Deputy U.S. Solicitor General Sri Srinivasan by Chief Justice John Roberts Jr.

“Is there any case where all the parties agreed with the decision below and we upheld appellate jurisdiction?” asked Roberts.

“No, I don’t know of one,” Srinivasan admitted. “It’s unusual, but that’s not at all surprising.”

“No, it’s not just unusual,” Roberts said. “It’s totally unprecedented.”

Paul Clement, a partner at Bancroft in Washington, D.C. representing the BLAG, said that Congress has an interest in protecting the “presumption that its acts are constitutional.”

“That presumption had real life here because when Congress was considering this statute it asked the Justice Department three times whether DOMA was constitutional” and was told it was, Clement said. “So I think it’s a fair assumption that they at least have standing to have that determination made by the courts.”

But Justice Stephen Breyer wasn’t so sure.

“The only interest I can see here is the interest in the law being enforced,” Breyer said. “And I’m afraid of opening that door.”

Expressing ‘moral disapproval of homosexuality’

On the merits, Clement argued that the law was designed to bring uniformity in federal law on issues stemming from marital status. Doing so was important, Clement argued, to prevent people in states prohibiting same-sex marriage from wedding elsewhere and then seeking to gain federal benefits in their home states.

The government “faced the prospect that one state, through its judiciary, will adopt same-sex marriage and then by operation of that through the full faith and credit law, that will apply to any couple that wants to go there,” Clement said. The law prevents people from traveling to another state to marry and “insisting on the recognition in their home jurisdictions.”

“But what gives the federal government the right to be concerned at all at what the definition of marriage is?” Justice Sonia Sotomayor asked.
Justice Elena Kagan stated her doubts about Clement’s proffered reason for the law, reading from a House Report on DOMA that stated in part: “Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.”

As some in the courtroom gasped at the language, Kagan asked: “Is that what happened [when the law was passed] in 1996?”

“Does the House Report say that? Of course, the House Report says that,” Clement said. “And if that’s enough to invalidate the statute, then you should invalidate the statute. But that has never been your approach.”

Kennedy homed in on the issue that could ultimately decide the case.

“The question is whether or not the federal government, under our federalism scheme, has the authority to regulate marriage,” Kennedy said.

U.S. Solicitor General Donald Verrilli Jr. argued that the law was not designed to bring uniformity, but to enforce discrimination against same-sex married couples.

“This statute is not called the Federal Uniform Marriage Benefits Act,” Verrilli said. “It’s called the Defense of Marriage Act.”

“So as soon as one state adopted same-sex marriage, the definition of marriage throughout the federal code had to change?” asked Roberts, referring to the fact that several federal laws define marriage based on state-law definitions, unless DOMA applies. “Because there is no doubt that up until that point every time Congress said marriage they understood they were acting under the traditional definition of marriage.”

Roberta Kaplan, a partner in the New York office of Paul Weiss argued on behalf of same-sex couples challenging the law that DOMA even failed rational basis analysis on the equal protection claim.

But Roberts steered her back to the federalism claim, asking: “Do you think there would be a problem if Congress went the other way” and required recognition of same-sex marriage in all states?

“Obviously, with respect to marriage, the federal government has always used the state definitions,” Kaplan said. “I think whether or not the federal government could have its own definition of marriage for all purposes would be a very closely argued question.”

“I don’t understand your answer,” Justice Antonin Scalia interjected. “Is your answer yes or no?”

“I think the federal government could extend benefits to gay couples to equalize things on a programmatic basis to make things more equal,” Kaplan said. “Whether the federal government can have its own definition of marriage, I think, would be very closely argued [as to] whether that’s outside the enumerated approach.”

A decision is expected in June as the court wraps the current term.