“I think it is a DOMA problem. The question is whether or not the federal government, under our federalism scheme, has the authority to regulate marriage.” With those words, Justice Anthony Kennedy signaled that unless someone changed his mind during oral arguments as to what this case is about, then Section 3 of the Defense of Marriage Act (DOMA) will be struck down. The Court could also throw out the case on procedural grounds (which I previously explained may well happen).
Former U.S. Solicitor General Paul Clement summed up well in his introduction the issue before the Supreme Court on the constitutionality of DOMA. He began:
The issue of same-sex marriage certainly implicates profound and deeply held views on both sides of the issue, but the legal question on the merits before this Court is actually quite narrow. On the assumption that states have the constitutional option either to define marriage in traditional terms or to recognize same-sex marriages or to adopt a compromise like civil unions, does the federal government have the flexibility, or must the federal government simply borrow the terms in state law?
Kennedy pushed back against Clement’s framing of this case on specific provisions of federal law, such as saying whether you can file a married joint tax return. Speaking of the federal government, he said, “But when it has 1,100 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 into conflict with what has always been thought to be the essence of the state police power, which is to regulate marriage, divorce, custody.”
Congress passed DOMA in 1996 when the Hawaii Supreme Court indicated it was considering declaring a legal right to same-sex marriage, and Congress was concerned that gays and lesbians would flock to Hawaii, get married, then return to their home state and insist that the Full Faith and Credit Clause of the Constitution required each state to accept gay marriage as well. The end result would be that the unelected judges in a single state could trump the democratically-adopted laws of all fifty states.
So, Clement explained, Congress said, “Let’s take a timeout here. This is a redefinition of an age-old institution. Let’s take a more cautious approach where every sovereign gets to do this for themselves.” That explains Section 2 of DOMA (which is not at issue in this case), that no state must recognize a marriage from another state if that marriage is not between one man and one woman (which excludes polygamy as well as gay marriage).
Section 3 permits the federal government to keep its traditional definition for areas where the Constitution empowers the federal government to act, such as taxes and immigration. It also recognizes the federal government is the dominant player in national affairs, and keeps that behemoth from tilting the democratic debate among the states on this issue.
Kennedy understood this argument but was skeptical of it, saying it’s, “not consistent with the historic commitment of marriage and questions of the rights of children to the states.”
Justice Elena Kagan sharply questioned Clement, saying Supreme Court precedent requires the justices to look, “with some rigor to say, do we really think 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?”
Clement responded that he rejected that, citing various major areas where Congress had been involved in marriage in American history. Second, he said that you don’t assume irrational hostility before asking if Congress had any good reasons to act as it did.
U.S. Solicitor General Donald Verrilli tried to get the Court to strike down DOMA for violating the equal-protection element of the Fifth Amendment, saying the Court should apply “heightened scrutiny” (specifically a standard of judicial review called “intermediate scrutiny,” under which a law must be substantially related to advancing important public interests), and find Congress’ law lacking under that standard.
But Kennedy suggested Verrilli might not even need to get that far. He responded, “You are insisting that we get to a very fundamental question about equal protection, but we don’t do that unless we assume the law is valid otherwise to begin with… What is the federal interest in enacting this statute and it is a valid federal interest…”
But the Obama administration seemed unwilling to take Kennedy’s invitation and declare something beyond the power of the federal government. So Verrilli said they do not believe DOMA creates a federalism problem of infringing state sovereignty, and instead is only unconstitutional because it fails due to the equal-protection impact.
Justice Samuel Alito rejected that argument, raising the example of three gay couples where one is in the hospital and the other wants to visit. “First is a spouse in a state that allows same-sex marriage, the second is a domestic partner in a state that allows that, but not same-sex marriage, and third is an equally committed loving relationship in a state that doesn’t allow either. Your argument is that under federal law the first should be admitted, but the other two would be kept out?”
Verrilli sidestepped the question, saying DOMA would only be upheld if the Court affirms that the lowest standard of review applies, that the law need only be rationally related to any public interest. This was an important admission that the Obama administration also made in their brief, acknowledging there are legitimate public interests involved in DOMA, and that Congress was reasonable in believing DOMA advances those interests.
This is a crucial difference from Edith Windsor, the New York lesbian who brought this lawsuit challenging DOMA. Windsor argued that the law is unconstitutional because it is literally irrational and motivated by animus, and serves no public interest. (Animus is a polite legal term for irrational hostility or even hatred.)
But Alito brought it back to his question, saying that it seems Verrilli says all three couples would be treated the same. That would not leave the states any freedom to choose on this issue.
Chief Justice John Roberts then weighed in. “So as soon as one state adopted same-sex marriage, the definition of marriage throughout the federal code had to change? 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.”
Verrilli also tried arguing that the Court should strike down DOMA because it was motivated by “moral disapproval” of homosexual conduct. This was an important argument because at the Supreme Court everything turns on getting five votes, and in 2003 the Court struck down all sodomy laws nationwide, and Kennedy–the swing vote now–was the fifth vote in that case to say Congress cannot base legislation solely on “moral disapproval.”
Roberts asked skeptically, “So that was the view of the 84 senators who voted in favor of it and the president who signed it? They were motivated by animus?” Verrilli immediately backpedaled, saying it was instead a lack “of careful reflection” that led to Congress and Clinton enacting DOMA.
Roberta Kaplan, representing Edith Windsor, argued that Congress passed DOMA because in 1996 there was, “an incorrect understanding that gay couples were fundamentally different than straight couples, an understanding that I don’t think exists today… We all can understand that people can move on this, and now understand that there is no such distinction.”
Scalia pushed back, asking, “Why are you so confident in that judgment? How many states permit gay couples to marry?” In other words, if this was because people were dimwitted dunces but are now enlightened, why do 41 out of 50 states still define marriage as one man and one woman?”
Kaplan later discussed how the gay-rights movement lacks political power. That was essential to Windsor’s case, because one of the requirements for “heightened scrutiny” is that the group of people suffering discrimination must be politically powerless and thus unable to vindicate its interests through the democratic system.
Roberts was incredulous at her statement. “Really? As far as I can tell, political figures are falling over themselves to endorse your side of the case.” He went on to reference the recent victories for gay-agenda supporters at the ballot box last year.
Kaplan insisted this was not evidence of political power. Instead, she fired a unvarnished broadside at tens of millions of people of faith in this country, saying the recent political victories are due to, “a moral understanding today that gay people are no different, and that gay married couples’ relationships are not significantly different from the relationships of straight married people.”
These two hours of argument ended with Clement coming back to the lectern for rebuttal. Perceiving that Kennedy was leaning against him and understanding Kennedy thought DOMA violated the Constitution’s federalism principles, Clement focused his attention there first.
Justifying his reputation as the best Supreme Court lawyer in the country, Clement began, “I was not surprised to hear the solicitor general concede there is no unique federalism problem with DOMA… If ten years from now there are only nine states left [that define marriage as one man and one woman] and Congress wants to adopt a uniform federal law solely for federal law purposes going the other way … it has the power to do that. I would say also that the federal government has conceded in this litigation that there is a rational basis for this statute, something else to keep in mind.”
Then Clement added that it is not unusual for the federal government to define terms frequently found in state family laws, adding that, “the very next provision in the Dictionary Act defines ‘child.'” He explained DOMA in terms of the federal government’s interest in uniformity, saying if an Army soldier is being transferred from New York (which recognizes gay marriage) to Oklahoma (which does not), the federal government would not want the soldier to resist transfer because he or she would lose marital benefits.
Clement concluded by refuting that Congress was driven by irrational hostility, as Kaplan claims. He pointed out that Congress requested three separate legal analyses on DOMA when it was being debated, and all three–including from the Clinton-Reno Justice Department, assured Congress DOMA was constitutional. “That’s not what you do when you are motivated by animus.”
He then refuted Verrilli’s argument that Congress just didn’t think it through. “Where do you get careful reflection in our system? Generally, careful reflection comes in the democratic process. The democratic process requires people to persuade people… You have to persuade somebody you’re right. You don’t label them a bigot. You don’t label them as being motivated by animus. You persuade them you are right.”
Clement concluded with a simple request. “Allow the democratic process to continue.”
We’ll find out before July if Clement persuaded Justice Kennedy to do so.
Breitbart News legal columnist Ken Klukowski is senior fellow for religious liberty at the Family Research Council and filed a brief for social scientists in the Supreme Court marriage litigation.