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Manhattan Appeals Court Revives Kelly Gunn’s Custody Lawsuit Against Circe Hamilton

Posted on: July 2nd, 2018 by Art Leonard No Comments

A five-judge panel of the New York State Appellate Division, First Department, based in Manhattan, has revived a lawsuit by Kelly Gunn, who is seeking joint custody of a child adopted by her former partner, Circe Hamilton. New York Supreme Court Justice Frank Nervo had dismissed the lawsuit on April 13, 2017, finding that despite her close relationship with the child, Gunn was not a “parent” under New York’s Domestic Relations Law, so lacked “standing” to sue for custody or visitation.  But the appellate court unanimously ruled on June 26, 2018, in an opinion by Justice Judith J. Gische, that Gunn should have another chance to call upon the equitable powers of the court to recognize her relationship with the child.  In re K.G. v. C.H., 2018 WL 3118937, 2018 N.Y. App. Div. LEXIS 4617, N.Y. Slip Op 04683.

This is just the latest of a series of opinions dating back more than a quarter century, grappling with the question of when the courts should recognize parental standing where an unmarried same-sex couple was raising a child together, broke up, and the birth or adoptive parent resisted their former partner’s attempt to continue in a parental role with the child.

In 1991, the highest New York court’s answer to the question was “never,” in the case of Alison D. v. Virginia M. The Court of Appeals said then that only a person related to the child by blood or adoption could have standing to seek custody or court-ordered visitation, giving a narrow interpretation to the word “parent” as used in the statute, which did not itself define the term.  Then-Chief Judge Judith Kaye wrote a dissent that was widely quoted by courts in other states as they adopted legal theories to allow these “second parents” to sue for custody or visitation rights.  Judge Kaye argued that the court’s decision failed to take account of the reality of non-traditional families, including those headed by LGBT couples, and would ultimately be harmful to the best interests the children, which courts would be precluded from considering if “second parents” did not have standing to bring the cases.

But the New York appellate courts stood firmly opposed to allowing such lawsuits until August 2016, when the Court of Appeals modified its position in the case of Brooke S.B. v. Elizabeth A. C. C. In that case, the court focused on a written agreement that two women made to jointly undertake the creation of a new child through donor insemination for them to raise together, and found that where the couple had gone through with their agreement, had the child, and raised it together for some time before splitting up, it was appropriate to allow the second parent to seek custody or visitation so that a court could determine whether it was in the child’s best interest to continue the second parent’s relationship with the child.

The court’s opinion in Brooke S.B., written by the late Judge Sheila Abdus-Salaam, was narrow and cautious, announcing a ruling based on the facts of that case, and leaving to later development other possible theories for second parents to use. In one case decided shortly after, the court accepted a “judicial estoppel” theory, where the birth mother had sued her former partner for child support, alleging that she had a parental obligation.  When the former partner than sued to assert parental rights, the Court of Appeals said that the birth mother could not deny her former partner’s parental status, which would be inconsistent with her position in the earlier case, even though the parties had not made a formal agreement like the one in Brooke S.B..

Kelly Gunn and Circe Hamilton, who had been together since 2004, agreed in 2007 that they would undertake an international adoption and raise a child together as a family. The plan was that Hamilton would adopt a child overseas, bring the child home to New York, and that Gunn would then complete a “second parent” adoption, a procedure which has been possible in New York for many years.  However, these plans had not come to fruition when the women’s romantic relationship ended in December 2009.

In 2010, Gunn and Hamilton signed a separation agreement negotiated with the assistance of lawyers, formally ending their cohabitation and romantic relationship, and dividing up their assets (including real property). Despite this breakup, Hamilton continued to deal with adoption agencies and eventually did adopt a child overseas with Gunn’s encouragement in the summer of 2011.  Gunn was in Europe on business at the time and met Hamilton and the child in London, from where they flew back to New York.  Although the women’s romantic relationship had ended, they had remained friends, and there is an extensive record of communications between them, which the trial court considered in reaching a determination that the 2007 agreement had not survived the breakup of the relationship.

Despite the breakup, Gunn was eager to be involved in the child’s life, and Hamilton accommodated her by allowing frequent contact, resulting in Gunn forming an attachment to the child. In August 2016, around the time that the Court of Appeals had overruled the Alison D. decision in the Brooke S.B. case, Hamilton, a British native, announced that she was planning to move back to England with the child and Gunn quickly sprang into action, filing this lawsuit and seeking a temporary order requiring Hamilton to remain in New York with the child while the case was litigated.  Gunn claimed that under the Brooke S.B. case, she had “standing” to seek joint custody and visitation rights because of the 2007 agreement the women had made.

Justice Nervo did not dismiss the case outright, and there was a temporary order, but after a lengthy trial he determined that the 2007 agreement had not survived the women’s breakup, and that by the time Hamilton adopted the child, she was acting on her own. The judge concluded that Gunn was a friend who had formed an attachment with the child, but not a “parent” within the meaning of the Domestic Relations Law, so she did not have standing to seek any parental rights.

The decision proved controversial from the moment it was announced. Despite the narrowness of the Court of Appeals ruling in Brooke S.B., that court had acknowledged the possibility that in a future case it might be appropriate to recognize parental standing in the absence of an express agreement, using a legal doctrine called “equitable estoppel,” which has been recognized by courts in several other states in lesbian parent custody disputes.  Gunn argued that this was such an appropriate case.  However, Justice Nervo, having concluded that Gunn did not have standing under his interpretation of the Brooke S.B. decision, had ended the trial without letting Gunn present additional evidence that could be relevant to an equitable estoppel claim.

Writing for the Appellate Division, Judge Gisch found that this may be the kind of case where equitable estoppel is appropriate. Certainly, the Court of Appeals’ Brooke S.B. decision did not foreclose the possibility.  While agreeing with Justice Nervo that the facts supported a conclusion that the 2007 agreement had terminated together with the parties’ romantic relationship well over a year before Hamilton adopted the child, and thus the case did not come squarely within the holding of Brooke S.B., nonetheless the court held that both parties should have the opportunity to present evidence about whether this would be an appropriate case to apply equitable estoppel.

Equitable estoppel might be a basis for Gunn to have standing to sue, but an ultimate decision on the merits would require the court to determine what would be in the best interests of the child. As to that, the court said, the child’s voice was an indispensable component, and was so far conspicuous by its absence from this case.   It is usual to appoint a person – frequently a lawyer – as “guardian ad litem” to represent the interest of the child in a custody and visitation dispute when the child is deemed too young and immature to speak for him or herself.  In this case, the child was born in 2011, and so by the time a hearing will be held will be seven years old – perhaps old enough to speak for himself, but that is something for Justice Nervo to determine.

The trial court will have to decide whether this is a case where Gunn had assumed a sufficiently parental role toward the child, with the consent or at least the acquiescence of Hamilton, to give her “standing” to be considered a parent for purposes of a custody and visitation contest, and then whether, under all the circumstances, it would be in the best interest of the child for Gunn to continue playing a parental role in the child’s life with the court ordering Hamilton to allow this relationship to continue.

Gunn had asked to have the case assigned to a different judge, but the Appellate Division declined to do so, without explanation.

Gunn is represented by Robbie Kaplan and her law firm, Kaplan & Company, as well as lawyers from Morrison Cohen LLP and Chemtob Moss & Forman LLP. Hamilton is represented by lawyers from Cohen Rabin Stine Schumann LLP.  The LGBT Law Association Foundation of Greater New York submitted an amicus brief to the court, with pro bono assistance from Latham & Watkins LLP, not taking sides between the parties but discussing the possible routes open to the court in applying the Brooke S.B. case to this new situation.


Federal Court Enjoins Enforcement of Mississippi’s Ban on Adoptions by Married Same-Sex Couples

Posted on: April 1st, 2016 by Art Leonard No Comments


Finding that the ability of a couple to adopt a child is a “benefit” of marriage, U.S. District Judge Daniel P. Jordan, III, ruled on March 31 in Campaign for Southern Equality v. Mississippi Department of Human Services, 2016 U.S. Dist. LEXIS 43897 (S.D. Miss.), that Mississippi’s statutory ban on adoptions by same-sex couples probably violates the 14th Amendment under the Supreme Court’s ruling in Obergefell v. Hodges.  Although Judge Jordan found that some of the plaintiffs and many of the defendants had to be dismissed from the case on grounds of standing and jurisdiction, he concluded that other plaintiffs did have standing to challenge the law in court, and that the Executive Director of the state’s Department of Human Services was an appropriate defendant to be ordered on behalf of the state not to enforce the ban while the lawsuit is pending.  The ruling came as the state’s legislature was putting finishing touches on a so-called religious-freedom bill intended to protect persons or businesses with religious objections to same-sex marriage or sex relations between anyone other than a man and a woman united in marriage from any adverse consequences at the hand of the government or any liability for refusing to provide goods or services in connection with same-sex marriages.  The constitutionality of such a measure is much disputed in light of Obergefell.

Among the plaintiffs are same-sex couples who sought second-parent adoptions of children born to one member of the couple by her same-sex partner, and same-sex couples who sought to adopt children not biologically related to either of them through the foster care system. The court found that one of the couples was not married at the time the complaint was filed, and dismissed them from the case for lack of standing, since the state denies adoptions to all unmarried couples, whether same-sex or different-sex.  However, the court concluded that all of the remaining couples had standing to challenge the statutory ban in court, since an employee of the Department had told one of the couples in response to an inquiry about the foster-care route that the Department would continue enforcing the ban despite the Supreme Court’s June 26, 2015, ruling in Obergefell v. Hodges, which held that states are required under the 14th Amendment to allow same-sex couples to marry and to accord official recognition to same-sex marriages contracted in other jurisdictions. The organizational plaintiffs, Campaign for Southern Equality and Family Equality Council, met the test for associational standing by alleging that they had members who were married same-sex couples in Mississippi with interests in adoption similar to the named plaintiffs.

The court found, however, that neither the governor nor the attorney general were appropriate defendants, since neither of those state officials plays any role in administering the adoption system. On different grounds, the court dismissed from the case several judges who were named as defendants, finding that judges whose role is to adjudicate cases are not “adverse parties” to plaintiffs seeking to invalidate a state statute.  The Department of Human Services could not itself be sued, as the 11th Amendment as construed by the Supreme Court gives state agencies general immunity from being sued by citizens of the state in federal court for violations of constitutional rights.  However, the Supreme Court has allowed a “work around” for that constitutional barrier, by allowing suits against the officials charged with the direction of an agency that plays a role in the enforcement of a challenged statute.  Judge Jordan found that the Department plays a significant role in administering the foster care system and in investigating adoption petitions and making recommendations to the courts, and thus the Director of the Department would be an appropriate defendant.  While noting that the Department has stated recently that it would not stand in the way of a same-sex couple adopting a child, the court found there was sufficient evidence in the record that same-sex couples continue to be discouraged from applying for the foster care program to discount this statement for purposes of determining who can be sued in this case, stating that “the record before the Court indicates that [the Department] has interfered with same-sex adoptions after Obergefell.”

Turning to the merits of the plaintiffs’ motion for a preliminary injunction, the court had to confront the doctrinal mysteries of Justice Anthony Kennedy’s opinion for the Supreme Court in Obergefell.  While that opinion makes clear that the right to marry as such is a fundamental right under the Due Process Clause of the 14th Amendment, and that exclusion of same-sex couples from marrying violates that fundamental right, the Court never directly addressed the question of what level of judicial review might be appropriate for claims that a same-sex couple is being denied any particular benefit of marriage, which would determine what kind of justification a state would have to present for treating same-sex couples differently from different-sex couples.

“While the majority’s approach [in Obergefell] could cause confusion if applied in lower courts to future cases involving marriage-related benefits,” wrote Jordan, “it evidences the majority’s intent for sweeping change.  For example, the majority clearly holds that marriage itself is a fundamental right when addressing the due-process issue.  In the equal-protection context, that would require strict scrutiny.  But the opinion also addresses the benefits of marriage, noting that marriage and those varied rights associated with it are recognized as a ‘unified whole.’  And it further states that ‘the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefit afforded to opposite-sex couples %and% are barred from exercising a fundamental right.’”

“Of course the Court did not state whether these other benefits are fundamental rights or whether gays are a suspect class,” Judge Jordan continued. “Had the classification not been suspect and the benefits not fundamental, then rational-basis review would have followed.  It did not.  Instead, it seems clear the Court applied something greater than rational-basis review.  Indeed, the majority never discusses the states’ reasons for adopting their bans on gay marriage and never mentions the word ‘rational.’”  Thus, from a doctrinal standpoint, the Obergefell opinion is in some sense incomplete.  But it was not puzzling enough to deter Judge Jordan from moving ahead to the logical result.

“While it may be hard to discern a precise test,” he wrote, “the Court extended its holding to marriage-related benefits – which includes the right to adopt. And it did so despite those who urged restraint while marriage-related benefits cases worked their way through the lower courts.  According to the majority, ‘Were the Court to stay its hand to allow slower, case-by-case determination of the required availability of specific public benefits to same-sex couples, it still would deny gays and lesbians many rights and responsibilities intertwined with marriage.’”  Judge Jordan noted Chief Justice John Roberts’ response to this point in his dissenting opinion, including his contention that as a result of the Court’s ruling “those more selective claims will not arise now that the Court has taken the drastic step of requiring every State to license and recognize marriage between same-sex couples.”  (In all these quotations from Obergefell, the emphases were added by Judge Jordan.)

“In sum,” wrote Jordan, “the majority opinion foreclosed litigation over laws interfering with the right to marry and ‘rights and responsibilities intertwined with marriage.’ It also seems highly unlikely that the same court that held a state cannot ban gay marriage because it would deny benefits – expressly including the right to adopt – would then conclude that married gay couples can be denied the very same benefits.”  The conclusion is obvious: Obergefell decides this case.  “The majority of the United States Supreme Court dictates the law of the land,” wrote Jordan, “and lower courts are bound to follow it,” which means the Mississippi statutory ban on same-sex couples adopting children violates the Equal Protection Clause.

In his March 31 decision Judge Jordan was not rendering a final ruling on the merits, but rather responding to the plaintiffs’ motion for a preliminary injunction against enforcement of the statutory ban while the case continues. The first step of determining whether plaintiffs can get their injunction requires the court to determine whether they are likely to win on the merits, and the foregoing discussion was directed to that point.  Next Jordan considered whether allowing the ban to continue would inflict irreparable harm on the plaintiffs, which is simply answered by noting that monetary damages could not compensate a delay in being allowed to adopt a child and that a denial of equal protection of the laws is always considered an irreparable injury.  Since the current position of the Department is that “it will not impede an otherwise valid gay adoption,” it was clear that the “balance of harms” between the parties favors plaintiffs, as does the factor of how the public interest would be affected by granting or denying an injunction.  Thus, the court concluded that an injunction should be issued.  “The Executive Director of DHS is hereby preliminarily enjoined from enforcing Mississippi Code section 93-17-3(5),” ordered the court.  There was no immediate word whether the state would attempt to appeal this grant of preliminary relief.  Perhaps the court’s opinion will suffice to convince state officials that “marriage equality” as decreed by the Supreme Court means equality in all respects, invalidating any state law or policy that would treat same-sex married couples differently from different-sex married couples.

Since Obergefell dealt with benefits of marriage and did not rule on the rights, if any, of unmarried same-sex couples, it would not provide a direct precedent concerning attempted second-parent adoptions or adoptions out of foster care by unmarried same-sex couples, which is why one of the plaintiff couples was dismissed from the case, even though they informed the court that they had married after the complaint was filed.  And it would be difficult to argue that unmarried same-sex couples are “similarly situated” to married couples in relation to the adoption of children, at least for purposes of an Equal Protection challenge.  Everybody involved in the case, it appears, agrees that the sole issue is whether the challenged statute can be used to deny married same-sex couples a benefit afforded to married different-sex couples.

Lead attorney for the plaintiffs is Roberta “Robbie” Kaplan, a partner in the New York City office of Paul, Weiss, Rifkind, Wharton & Garrison, who also represented Campaign for Southern Equality in its successful legal challenge to Mississippi’s ban on same-sex marriage and Edith Windsor in her successful legal challenge to Section 3 of the Defense of Marriage Act.

The Bitter-Enders in the World of Marriage Equality

Posted on: November 10th, 2015 by Art Leonard No Comments

When the Supreme Court says it’s done, then it’s done, right?  Well, not necessarily in Mississippi, where resistance to the impact and consequences of marriage equality lingers.  In recent days, the Mississippi Supreme Court has weighed in — sort of — on gay divorce, and a trial judge in Hinds County heard arguments about the state’s continuing ban on “same-sex” adoption.

The divorce case, Czekala v. State, No. 2014-CA-00008-SCT (Nov. 5, 2015), involves a lesbian couple who went to California during the freedom summer of 2008 and got married, then returned to continue living in Mississippi.  Lauren Beth Czekala-Chatham and Dana Ann Melancon separated on July 30, 2010 and Lauren filed a divorce action in the Chancery Court of Desoto County on September 11, 2013.  Why the wait?  This writer speculates that Lauren did not feel any urgency about filing for divorce so long as neither Mississippi nor the federal government recognized the marriage, but on June 26, 2013, the U.S. Supreme Court struck down the Defense of Marriage Act in the Windsor case and suddenly there were consequences under federal law if the marriage was not legally ended.

The problem was that Mississippi did not recognize the marriage.  For whatever reason of her own, Dana Ann decided to oppose the divorce, filing a motion to dismiss the case on the ground that her marriage was “null and void” in Mississippi.  Lauren responded with a motion to declare the state’s ban on recognizing the marriage unconstitutional.  This woke up the state, which moved to intervene to defend its marriage ban.  The chancery court judge upheld the marriage ban and dismissed the divorce petition.  Lauren appealed to the Mississippi Supreme Court, which heard oral argument on January 21, 2015, less then two weeks after the U.S. Supreme Court agreed to review the Obergefell v. Hodges case on marriage equality.

After the U.S. Supreme Court ruled on June 26 of this year, Lauren moved for an entry of judgment based on Obergefell.  If states cannot refuse to let same-sex couples marry or to recognize their marriages, she argued, then there was no reason for Mississippi to refuse to consider her divorce petition.  The attorney general agreed that under Obergefell the court should grant Lauren’s motion and send the case back to the chancery court.  This was enough for five members (a majority) of the court, which found that “no contested issues remain for resolution” and granted Lauren’s motion without further explanation.  This set off squabbling on the court, with four judges writing or agreeing with various objecting decisions and one judge writing a separate concurring statement joined by another.

The main points of contention were whether it was irresponsible of the court not to issue a full ruling on the merits, and further, at least on the part of two judges, whether the majority of the court had violated their oaths of office by following an “illegitimate” U.S. Supreme Court decision, which in turn drew responses from other judges on their duty to follow U.S. Supreme Court constitutional rulings.

Seizing upon irresponsible and intemperate statements by the four dissenting Supreme Court justices in Obergefell, Justices Jess H. Dickinson and Josiah D. Coleman insisted that Obergefell is an illegitimate ruling that should not be followed by the courts of Mississippi.  This extreme view is fanned by dozens of academics who have lent their names to a website instigated by Professor Robert P. George of Princeton University, an obsessive homophobe, under the title “Statement Calling for Constitutional Resistance to Obergefell v. Hodges.”  Using selective quotations from the four Obergefell dissents and out-of-context quotations by other historical luminaries, Prof. George and the dissenting Mississippi justices take seriously Chief Justice John Roberts’ parting shot in his dissent — that the decision has “nothing to do with the Constitution.”  If that is so, wrote Justices Dickinson and Coleman, then it would violate their oaths of office to comply with that ruling.  Dickinson included in his dissent the list of the signers on Prof. George’s website to support the argument that Obergefell is an “illegitimate” decision.

Even on the very conservative Mississippi Supreme Court this assertion drew only two votes.  Others objecting to the majority’s handling of the case would have preferred that the court issue a full ruling on the merits discussing the Obergefell case and explaining why its federal constitutional mandate would extend to striking down Mississippi’s marriage and recognition bans.  Indeed, one of the objecting judges included in his opinion the full text of what he would prefer the court to have issued as an opinion on the merits.  These judges argued that it was important for the state’s high court to explain for the benefit of the lower courts and the public about the current status of Mississippi law in light of Obergefell.

The lack of such affirmative guidance may be felt in the adoption litigation, where the state persists in arguing that it is not required to allow the same-sex spouse of a military service member to adopt their child who was born while the birth mother was living in Mississippi.  Attorney Roberta Kaplan, who represented Edith Windsor in the successful challenge to the Defense of Marriage Act, represents Donna Phillips and Jan Smith.  According to a news report about the case, Mississippi is the last state to have a statutory ban on same-sex couples adopting children, and the state is continuing to defend that ban in this case, even though it threw in the towel in the divorce case.

Phillips, the birth mother, happened to be stationed in Mississippi when she gave birth.  Now, as her spouse Jan Smith explained in an interview with WJTV on November 8, “We live our lives just like everyone else.  She was deployed. We struggled.  It was hurtful.  It was tough.  With that we just want the same protection that everyone has for their children.”  Said Phillips, “We want Jan’s name to be on our daughter’s birth certificate.  That’s all we are looking for, so she has equal rights to take care of her and to do what’s necessary for our daughter.”

Kaplan pointed out, “It’s very hard to say gay couples have the right to marry but they don’t have the right to adopt.”  But attorneys for the state insisted that the state’s ban remains constitutional, despite Obergefell, and urged the court to dismiss the case.  The judge reserved judgment at the end of the hearing, with no firm deadline for ruling on the case.

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

Posted on: March 27th, 2013 by Art Leonard No Comments

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.