PROCEDURAL POINTS

03.27.13

Justices Dance Around Procedure, but DOMA Is Still About Discrimination

In the second day of oral arguments over same-sex marriage before the Supreme Court, there appeared to be greater agreement on the shortcomings of DOMA. Adam Winkler reports.

Sitting on the hard, wooden benches inside the Supreme Court as the justices file in from behind a red velvet curtain, the anticipation of the crowd is palpable. There are gay couples with small children, eager to witness this historic moment for equal rights. There are gay-rights activists who’ve devoted their careers to combating discrimination and intolerance. There is a who’s-who list of Washington lawyers, convinced that this case, United States vs. Windsor, could lead to a landmark ruling for gay people in the way that Brown v. Board of Education was for the nation’s racial minorities more than half a century ago.

Standing in for Oliver Brown is Edie Windsor, an 83-year-old lesbian woman who was stuck with a $360,000 estate-tax bill when her (lawfully wedded) female spouse, Thea Spyer, died in 2009. Had she been in a heterosexual marriage—had Thea been Theo, as she puts it—she wouldn’t have had to pay a dime of that tax. But under the Defense of Marriage Act of 1996 her gay marriage was not recognized by the federal government. So she paid the tax and sued seeking a refund and a declaration that DOMA—the Defense of Marriage Act signed into law by President Bill Clinton in 1996 (but more recently disavowed by him)—was unconstitutional.

For Windsor and nearly everyone in the crowded courtroom, this case is about discrimination against gays and lesbians. Everyone, that is, except the nine justices. Most of them appear to want to talk about anything but discrimination against gay people. Instead, they focus the hearing on procedural issues, such as who has the authority to defend the law, or on dry questions of the relationship between the federal and state governments.

Vicki Jackson, a Harvard Law professor, rises to the lectern and begins her remarks. She has the unenviable task of telling these justices—who love to decide all the major issues in America—that they can’t decide this one.

“There is no justiciable case before this court,” she says. Highlighting the unusual procedural posture of this case, Jackson is not a lawyer representing any party to the dispute; rather she was asked to appear by the justices themselves because the Obama administration, which ordinarily would be expected to defend the constitutionality of a federal law like DOMA, declined to do so. The administration agrees with Windsor that the relevant provisions of that law are unconstitutional, yet it continues to deny Windsor the money it believes it owes her.

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On Wednesday, Edie Windsor spoke outside the Supreme Court.

The justices won’t agree on much during the oral argument, with the one exception being that the Obama administration is trying to have it both ways. Chief Justice John Roberts wonders why, if DOMA really is unconstitutional, Obama didn’t just pay Windsor her tax refund. “I don’t see why he doesn’t have the courage of his convictions,” Roberts wonders. Justice Anthony Kennedy, whose vote the administration needs if the court is going to declare DOMA unconstitutional, also weighs in, at one point saying the administration’s legal position was enough to “give you intellectual whiplash.”

Jackson also argues a second procedural point: that one of the other lawyers about to rise to the podium doesn’t belong here at all. She’s talking about Paul Clement, the noted conservative lawyer hired by House Republicans to defend the orphaned law. Members of Congress don’t have “standing,” Jackson argues, because they haven’t suffered any particular injury. Moreover, Clement doesn’t even represent “Congress” because the Senate never authorized his hiring. Basically, she says, Clement merely represents an unhappy group of elected officials—and unhappiness isn’t an injury sufficient to invoke the power of the court.

“No joint [tax] return, no marital deduction, no Social Security benefits,” Justice Ginsburg said. “One might well ask, What kind of marriage is this?”

For an hour, the justices debate these procedural issues. None strongly defend Clement’s authority to be there, and several seem to agree with Justice Stephen Breyer, who suggests that it is unprecedented for the court to allow individual legislators to be an official party to a case such as this.

“I can’t think of another instance where that’s happened,” he says.  The “only interest I can see here is the interest in the law being enforced,” and that interest isn’t unique to the legislators. Every citizen has the same interest, and yet the Supreme Court doesn’t allow them to sue.

Finally, the justices turn to the merits of the case, but they still seem eager to avoid talking about the issue in the terms that nearly everyone else inside the courtroom does. Instead of the issue of equality, the main debate is about federalism—i.e., whether marriage is a proper subject for the federal government, as compared with the states, to regulate.

Clement tells the court that many federal laws use the word “marriage,” and there’s nothing unique about Congress defining that terminology for purposes of federal law. The federal law is justified by Congress’s desire for uniformity. It would be a hassle for federal agencies to give some gay couples benefits but deny them to others simply because state law on marriage varies.

But Justice Ruth Bader Ginsburg, who was the leading women’s-rights advocate in the Supreme Court before joining the bench herself, tries to draw attention to the issue of discrimination. If the federal government denies all federal benefits to lawfully married gay couples—“no joint [tax] return, no marital deduction, no Social Security benefits”—“one might well ask, What kind of marriage is this?”

Kennedy, who has long been known for his preference for state authority over federal authority, quickly returns the discussion to concerns over federalism. The problem with DOMA, he says, is that “it applies to over, what, 1,100 federal laws,” which “means that the federal government is intertwined with the citizens’ day-to-day life.” For Kennedy, that’s a bad thing. For supporters of gay rights, it will have to do. Gay marriage may be too much for Kennedy to endorse, but he signals time and time again that he’s uncomfortable with the federal intrusion into what he refers to at one point as “the historic commitment of marriage and of questions of the rights of children to the state.” Any vote in a storm.

Justice Elena Kagan notes that “historically, the only uniformity that the federal government has pursued is that it’s uniformly recognized the marriages that are recognized by the state.” That is, it’s always been the state’s definitions of marriage that mattered, and the federal government simply followed along. “Maybe,” she hints, “Congress had something different in mind than uniformity” when it passed DOMA. The real purpose of the law, she continues in an attempt to shift the focus back to questions of equality and discrimination, was to harm gay people. Citing the House Report on DOMA from when it was being deliberated in 1996, Kagan points out that its goal was “to express moral disapproval of homosexuality.” That “sends up a pretty good red flag” that this law wasn’t about uniformity of federal law but about hostility to gay people, Kagan argues, a “group that is not everybody’s favorite group in the world.”

And with that, Kagan has cut to the heart of the issue: Is DOMA nothing more than an effort to deny gay people rights because the majority is hostile to them? The chief justice appears offended by this suggestion and asks if the lawyers challenging DOMA believe that every member of Congress who voted for it did so out of animus toward gay people. The lawyers dance around, perhaps afraid of casting legislators in such a negative light, but ultimately admit that the lawmakers were at least “unthinking” toward—or failed to “understand”—gay people.

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Watch a mashup of TV's cutest gay couples.

But the chief justice is not satisfied. Why should the court step in to protect gay people, he asks, given that “the lobby supporting the enactment of same-sex marriage in different states is politically powerful”?

“As far as I can tell, political figures are falling over themselves to endorse” gay marriage. This prompts a forceful response from Windsor’s attorney, Roberta Kaplan. “The fact of the matter is, Mr. Chief Justice, that no other group in recent history has been subjected to popular referenda to take away rights that have already been given, or exclude those rights, the way gay people have.” Prior to 1990, Kaplan notes, “gay people were not even allowed to enter this country.”

Of course, they are allowed to immigrate to our shores now and, in nine states and the District of Columbia, they are even permitted to marry. Whether they will soon be entitled to all the benefits the federal government gives to every other married couple will have to wait until June, when the DOMA decision is expected to come down.