Is DOMA (Section 3) Doomed? Supreme Court Argument Suggests That Possibility

This morning, March 27, 2013, the Supreme Court heard oral arguments in United States v. Windsor, No. 12-307, in which Edith Schlain Windsor, the surviving spouse of Thea Clara Spyer, sued the federal government in her capacity as executor of her wife’s estate for a refund of the estate tax that was levied in 2009.  At issue in the case is the constitutionality of Section 3 of the federal Defense of Marriage Act (DOMA), which defines marriage for all purposes of federal law as the union of one man and one woman.

Windsor and Spyer, who resided in New York, married in Canada in 2007, having lived together as a couple for several decades.  In 2008, before Spyer passed away, intermediate appeals courts in New York began to rule that same-sex marriages contracted lawfully elsewhere (including in Canada) would be recognized in New York.  (In 2011, New York passed a marriage equality law.)  After Spyer died in 2009, the Internal Revenue Service expressly relied upon Section 3 of DOMA to reject the claim that Spyer’s bequest to Windsor was shielded from estate taxes by the marital deduction.

Before responding to Windsor’s complaint, the Obama Administration changed its position on the constitutionality of Section 3, which it had been defending in litigation then pending before the 1st Circuit Court of Appeals in Boston.  Attorney General Eric Holder announced that he and the president had concluded that Section 3 violated the Equal Protection Clause and was indefensible, but the president had ordered that the executive branch continue to enforce the statute until it was either repealed or declared unconstitutional.  As part of that analysis, the government abandoned the position it had taken in defending a DOMA case in the 1st Circuit, where it had contended that Section 3 was defensible under rationality review, and embraced the view that laws discriminating based on sexual orientation are subject to heightened scrutiny, requiring the government to prove that the challenged law substantially advances an important government interest.  This, argued the Justice Department, DOMA did not do.

Consequently, the Justice Department filed a motion to dismiss Windsor’s case, in which it asked the district court to declare the statute unconstitutional!  (Read that sentence more than once.)  The district court ruled that Section 3 lacked a rational basis, after allowing counsel on behalf of the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives, Paul Clement, to intervene in defense of the statute.

The Justice Department, despite getting exactly the ruling on the merits for which it had argued, appealed the case to the 2nd Circuit Court of Appeals, in search of the “definitive” ruling on Section 3’s constitutionality that the president had set as a criterion for ceasing to enforce the statute, but it was BLAG, still acting as an intervening defendant and now appellant, that argued to the court that the statute was constitutional. The 2nd Circuit agreed with the Justice Department’s argument that the statute was subject to heightened scrutiny and was unconstitutional, ordering a tax refund for Windsor, but the order was stayed pending further review.  Every party in the case — Windsor, the Justice Department, and BLAG — filed petitions for certiorari with the Supreme Court.  The Court granted the Justice Department’s petition on December 7, 2012.  The Court has not acted on the other petitions, or on petitions filed in other DOMA-related cases, including the 1st Circuit ruling declaring Section 3 unconstitutional.

When the Court granted the petition, it added the question whether the case was properly before the Court due to two problems: (1) The Petitioner (the Justice Department) did not disagree with the 2nd Circuit’s disposition of the case, so there was some question whether the Petitioner was presenting the Court with a real “case or controversy,” as required by the Court’s precedents, or merely a request for an advisory opinion; (2) There was some question whether BLAG, which had been allowed by the lower courts to participate as an intervening party in the case, had “standing” to participate at the appellate level in defense of the statute.  After having asked the parties to brief and argue these issues, the Court — realizing that all of the parties to the case wanted the Court to rule on the merits and would be unlikely to argue against jurisdiction — appointed Prof. Vicki Jackson of Harvard Law School to act as an “amicus curiae” (friend of the Court) to brief and argue in support of the proposition that the Court lacked jurisdiction over the case and that BLAG lacked standing to participate as a party.

The Court allocated Prof. Jackson substantial time – ultimately, almost half an hour – to make her argument, followed by extensive argument from Deputy Solicitor General Sri Srinivasan and counsel for BLAG, Paul D. Clement, in what can only have been a stultifyingly boring trial for most of the audience in the courtroom, who came to hear arguments about the constitutionality of DOMA and were instead subjected to nearly an hour of arcane federal jurisdictional and procedural jargon.  Little happened during this part of the argument that wasn’t already gone over in the pre-hearing briefs filed with the Court, so the main interest was in discerning whether the Justices might signal by their questions and comments how they lined up on the issues of jurisdiction and standing.  Having read the transcript and listened to the audio recording, I am left with the impression that the more conservative Justices, reading the tea leaves, know that Section 3 would likely be struck down on the merits and would like to see the case dismissed on jurisdictional grounds, while the more moderate to liberal justices, who are eager to strike down Section 3, are willing to accept the Justice Department’s somewhat strained argument that it is an “aggrieved party” on the losing end of a Court of Appeals decision, facing an order to dispense $363,000 from the federal treasury.  As usual, all eyes and ears were on Justice Anthony Kennedy, the potential tie-breaker.

Kennedy’s first interjection in the argument suggested that he will line up with those finding a basis for jurisdiction.  After Prof. Jackson asserted that “a party on appeal has to meet the same Article III standing requirements of injury caused by the action complained of and redressable by the relief requested by the parties” as a plaintiff at trial, Justice Kennedy said, “But it seems to me there’s an injury here,” and Justice Elena Kagan picked up the ball, stating, “To go back to Justice Kennedy’s point, we have injury here in the most classic, most concrete sense.  There’s $300,000 that’s going to come out of the Government’s treasury if this decision is upheld, and it won’t if it isn’t.”  That got the conversation rolling. 

At bottom, the Court’s concern is whether it is deciding something that actually matters to the parties in terms of an economic or liberty interest, or whether it is just being asked in the abstract to decide a question of legal doctrine, which it does not have the power to do as a federal court in the absence of a “real case.”  The Justices inclined to find jurisdiction emphasized that there was something real at stake here: not just Windsor’s tax refunds but the rights of married same-sex couples under more than 1100 provisions of federal law for which marital status is relevant.

There was some colloquy, apparently a bit exasperated on the part of Chief Justice John Roberts, about the president’s position of continuing to enforce DOMA while refusing to defend it on constitutional grounds.  Roberts asked why the president did not have the “courage” to act on his convictions and order the government to stop enforcing Section 3.  In questioning the Deputy Solicitor General, Roberts asserted that the Justice Department was “asking us to do something we have never done before to reach the issue in this case.”   There is a first time for everything, of course, and — as the late Justice William Brennan was fond of saying, “you can do anything you like around here if you can count to 5” — so if a majority of the Justices find that there is a real “case and controversy” before them, they are likely to find that they have jurisdiction, regardless of precedent.  

The Justices spent so much time grilling Prof. Jackson about the “case or controversy” issue that she was unable to address the second issue of BLAG’s “standing” at any length, so that was played out mainly in the arguments by Mr. Srinivasan and Mr. Clement. This discussion focused heavily on the precedent of the Chadha case, where the two houses of Congress were granted intervenor status to argue in support of a statute that gave the houses of Congress veto power over decisions by the Immigration Service not to deport an deportable alien.  Mr. Chadha was a deportable alien whom the Service decided not to deport. The House voted to overrule this decision, and Mr. Chadha sued the Immigration Service to block his pending deportation.  The Immigration Service argued that the statute was unconstitutional, and the House and Senate both intervened to defend their statutory right to veto these decisions.  This part of the argument seemed rather pointless, since the Court had allocated Mr. Clement substantial time to argue on the merits, so the views of the Republican leadership of the House in support of Section 3 were going to be presented to the Court, regardless whether they decided that BLAG had standing.  Clement urged the importance of deciding the standing issue in his favor, however, for the sake of future cases, pointing out that participation as an “amicus” rather than an intervening party was distinctly inferior, especially because a party can conduct pre-trial discovery, including compelling the production of evidence, which is not available to an “amicus.” 

In her brief, Prof. Jackson argued that the absence of BLAG from the case as a party would deprive the case of “adverseness” on the issue of DOMA’s constitutionality, given the positions of the Justice Department and Windsor, and, she further argued, BLAG lacked standing, thus contributing to the Court’s lack of jurisdiction over the case. 

Jurisdictional questions loomed large on Tuesday in the Proposition 8 argument, where it appeared from the comments of the Justices that there might be substantial support for avoiding the merits of a constitutional claim to the right to marry by disposing of the case on these non-merits grounds, but despite the allocation of substantial time to the issue during the DOMA argument, ultimately the jurisdictional issues did not loom so heavily, since it appeared possible that there was a majority for striking DOMA and the Justices in the majority would find a rationale for asserting jurisdiction and getting to the merits.  After hearing a final rebuttal argument from Prof. Jackson, Chief Justice Roberts noted for the record that she had briefed and argued the case at the invitation of the Court, commenting, “you have ably discharged the responsibility, for which you have the gratitude of the Court.”  Then the argument turned to the merits, and the return of Mr. Clement.

Clement sought to frame the case as a “federalism” case rather than an equal protection case.   He contended that the states as sovereigns have the right to define marriage for their purposes, and the federal government as a sovereign has the right to define marriage for its purposes.  He also argued that as of the year DOMA was adopted (1996), whenever Congress had adopted a statute that included some reference to marriage, it was always with the understanding of the traditional opposite-sex definition of marriage, and that in Section 3 Congress was doing no more than adding a provision to the federal Dictionary Act consistent with that understanding.  Justice Ruth Bader Ginsburg immediately led the charge for the Justices inclined to strike down Section 3, suggesting that a state law marriage that was denied all federal benefits would be distinctly lesser.

What people were waiting for was to see whether Justice Kennedy would show his hand, which he soon did.  Clement asserted that Congress did not interfere with the right of states to define marriage.  “It would obviously be a radically different case,” he said, “if Congress had, in 1996, decided to try to stop States from defining marriage in a particular way or dictate how they would decide it in that way.”  “Well,” said Justice Kennedy, “it applies to over what, 1100 Federal laws, I think we are saying?  So it’s not — I think there is quite a bit to your argument that if the tax deduction case, which is specific, whether or not if Congress has the power it can exercise it for the reason that it wants, that it likes some marriage, I suppose it can do that.  But when it has 1100 laws, which in our society means that the Federal Government is intertwined with the citizens’ day-to-day life, 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.”  Kennedy then challenged Clement’s argument that DOMA was about maintaining uniformity for purposes of federal law, stating, “Well, but it’s not really uniformity because it regulates only one aspect of marriage.  It doesn’t regulate all of marriage.”  

Further on in the argument, Kennedy alluded to a point that seemed to have struck him with particular force during the Proposition 8 argument, by mentioning “the right of children,” presumably shorthand for invoking the disadvantages children might suffer if their parents’ marriage was not recognized for federal purposes.

Then, after Clement asserted that a function of DOMA was to avoid having the states expand the class of people eligible for federal benefits if they allowed same-sex marriages, Ginsburg intervened, stating, “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, as Justice Kennedy said, 1100 statutes, and it affects every area of life.  And so you are 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.” 

Justice Kagan then brought home the point that prior to passage of DOMA, “the only uniformity that the Federal Government has pursued is that it’s uniformly recognized the marriages that are recognized by the State.”  Turning the argument to whether pursuit of uniformity was the real reason for DOMA, Kagan continued, “So, this was a real difference in the uniformity that the Federal Government was pursuing.  And it suggests that maybe something — maybe Congress had something different in mind than uniformity.  So we have a whole series of cases which suggest the following: Which suggest that when Congress targets a group that is not everybody’s favorite group in the world, that we look at those cases with some — even if they’re not suspect — with some rigor to say, do we really think that Congress was doing this for uniformity reasons, or do we think that Congress’s judgment was infected by dislike, by fear, by animus, and so forth?”  This shifted the argument back to the historical context of DOMA’s enactment, and led Justice Kennedy to raise the federalism issue that may be his defining issue in the case:  “The question is whether or not the Federal government, under our federalism scheme, has the authority to regulate marriage.”  Clement insisted that DOMA was not regulating marriage, merely defining it for purposes of federal law, but this didn’t stand up very well considering how “intertwined” — to use Kennedy’s term — federal law is with the everyday lives of people, especially when it comes to economic issues such as Social Security, taxes, and public benefits law, for all of which marital status can make a big difference.

When Solicitor General Donald Verrilli got up to argue, Chief Justice Roberts sought to engage him in an extended, rather pointless, colloquy about federalism and the limits of Congress’s power to define terms used in federal statutes, but Verrilli did get around to making his main points about the discriminatory impact of DOMA.  Justice Samuel Alito posed an interesting hypothetical about three soldiers with same-sex civilian partners; one married, one in a civil union, one in a committed relationship in a state that provided neither legal status.  He asked whether in all three cases the civilian partner would be entitled, under the government’s argument, to be notified in the event the soldier was wounded.  This responded to Verrilli’s opening argument about how DOMA interferes with the spouse’s right to be notified, confirmed when Verrilli conceded that only the spouse would be entitled to notification under the government’s argument.  “The question in the case” before the Court, responded Verrilli, “is whether Congress has a sufficiently persuasive justification for the exclusion that it has imposed.  And it does not.  The only way in which BLAG’s arguments for the constitutionality of this statute have any prospect of being upheld is if the Court adopts the minimal rationality standard.”  Verrilli argued for heightened scrutiny, based largely on the history of anti-gay discrimination by the government, and did not depart from the government’s continuing position that Section 3 would survive under traditional rationality review.

Chief Justice Roberts sought to rehabilitate BLAG’s case against heightened scrutiny by posing questions about the recent political successes of the gay rights movement, suggesting that gay people can achieve their rights through the normal legislative process without the assistance of heightened scrutiny in constitutional litigation, and Clement sought to drive home this point in his brief rebuttal, when he concluded with a plea to the Court, reminiscent of the closing argument by Charles Cooper on behalf of the Proponents of Proposition 8, to allow the issue of gay marriage to be resolved through the political process.

Roberta Kaplan, whose advocacy of Edie Windsor’s case was successful in the District Court and the Court of Appeals, had been relegated by the Supreme Court almost to the status of a bystander, given brief argument time towards the end.  Parting company slightly from the Solicitor General’s argument, which was premised on heightened scrutiny, Kaplan argued that Section 3 of DOMA “fails even under rationality review.  Because of DOMA,” she continued, “many thousands of people who are legally married under the laws of nine sovereign states and the District of Columbia are being treated as unmarried by the Federal Government solely because they are gay.” 

Chief Justice Roberts and then Justice Antonin Scalia tried to drag her back into the federalism arguments that  had been posed to the Solicitor General, asking whether Congress would be within its authority if it adopted a federal definition of marriage that included same-sex couples for purposes of Federal benefits and applied that uniformly throughout the country, even in states that did not recognize any legal status for same-sex partners.  “I think the Federal Government could extend benefits to gay couples to equalize things on a programmatic basis to make things more equal,” Kaplan responded. “Whether the Federal Government can have its own definition of marriage, I think, would be very closely argued whether that’s outside the enumerated approach,” by which she seemed to be saying that only the states can decide who can marry.  After some intense back and forth with Scalia, she concluded on this point, “I’m not sure the Federal Government can create a new Federal marriage that would be some kind of marriage that State’s don’t permit.” 

In response to further questioning along this line by Justice Alito, Kaplan appeared to narrow the plaintiff’s claim in this case.  Alito was asking, in effect, whether stiking Section 3 and recognizing legally married couples for purposes of federal benefits would extend to couples living in states that did not recognize such marriages.  (For example, a couple residing in North Carolina who were married in New York.)  Alito wanted to know whether the equal protection problem argued by Kaplan would occur if the federal government refused to recognize their marriage.  “Our position is only with respect to the nine States — and I think there are two others that recognize those marriages,” she replied.  “So if my client — if a New York couple today marries and moves to North Carolina, one of which has a State constitutional amendment — and one of the spouses dies, they would not — and estate taxes determine where the person dies, they would not be entitled to the deduction. That is not our claim here.” 

Actually, the Respect for Marriage bill pending in Congress, which would repeal Section 3 and substitute federal recognition for same-sex marriages validly contracted under state law, would provide a different answer to that question, requiring the federal government to continue to recognize the marriage, but Kaplan’s argument just went to the constitutional issues posed by Justice Alito in his hypothetical case, not to the question of what would be politically desirable.  However, Alito’s question raised a red flag about whether that portion of the proposed bill would raise federalism questions. 

Justice Stephen Breyer asked Kaplan to respond to Clement’s argument that by passing DOMA Congress was attempting to stay out of the issue of same-sex marriage.  “Congress did not stay out of it,”  Kaplan responded.  “Section 3 of DOMA is not staying out of it.  Section 3 of DOMA is stopping 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 State of New York and others, it’s undermining the policy decisions made by those States that have permitted gay couples to marry.”  Chief Justice Roberts again sought to get Kaplan to concede the political power of gay people in achieving change since DOMA was passed, but she resisted, stating, “I don’t believe that societal understanding  came strictly through political power; and I don’t think that gay people today have political power as that — this Court has used that term with — in connection with the heightened scrutiny analysis.”

In the immediate post-argument wave of media comment, there emerged a consensus that the Court was likely to rule, by a vote of at least 5-4, that Section 3 of DOMA violates the equal protection clause, after having concluded that it has jurisdiction in the case, but any consensus based on conclusions derived from the Justices’ questions and comments must be at best provisional.  Justice Kennedy’s remarks did not reflect the kind of indecision signaled by his participation in the Proposition 8 argument, probably because a decision striking down Section 3 seems a smaller step, and the equal protection violation seems so clear on its face.  Justice Breyer briefly raised the question whether there was a principled way to rule for the plaintiff in this case but not for the plaintiffs in the Proposition 8 case, but discussion of that did not go very far or deep.  It is a fair question, however, since some of the justifications articulated by members of Congress in 1996 for enacting DOMA sound much like the arguments Cooper was making in support of Proposition 8.  A decision holding that Section 3 does not even survive rationality review would be a useful precedent for those litigating for same-sex marriage in other states.  But, for now, the case is submitted and the process will continue behind closed doors until the Court renders its decision in June.

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