Supreme Court marriage linkfest: Federal DOMA doomed?

Today the U.S. Supreme Court heard oral arguments in United States v. Windsor, a challenge to the constitutionality of the 1996 federal Defense of Marriage Act. Unlike yesterday’s hearing on California’s same-sex marriage ban, this case will affect many Iowans directly. The court’s ruling on DOMA will determine whether thousands of married LGBT couples in Iowa are eligible for benefits granted to married citizens under federal law.

Lots of links are after the jump, but the enduring sound bite from the day will surely be Justice Ruth Bader Ginsburg’s comment: “You’re saying […] there are two kinds of marriages, the full marriage, and this sort of skim milk marriage.”

The Hill posted the full transcript and audio from today’s oral arguments here.

The Alliance for Justice posted Ginsburg’s point about second-class “skim milk marriage” here.

For the SCOTUS blog, Amy Howe discussed today’s hearing in plain English.

More audio clips and analysis of the arguments are on this page of the Alliance for Justice site. Here’s what the case is all about:

Section 3 of the so-called Defense of Marriage Act (DOMA) denies more than a thousand different different federal rights to legally-married same-sex couples. Those benefits range from Social Security death benefits to the right to take family medical leave. DOMA even can separate spouses of different nationalities.

DOMA also has an impact on estate taxes. DOMA prohibited the federal government from recognizing the marriage of Edith Windsor to her lifelong partner, Dr. Thea Spyer. As a result, Ms. Windsor was hit with a huge bill for inheritance taxes. Ms. Windsor sued, arguing that Section 3 of DOMA violates the Constitution’s guarantee of equal protection. Now age 83, Ms. Windsor has taken the case all the way to the Supreme Court.

The Supreme Court in Windsor has the ability to finally recognize that discrimination against LGBT Americans violates the Constitution. Alternatively, the Court could hold that DOMA violates the power of states to define the rights and benefits of their LGBT citizens.

This chart on the New York Times website explains who would be affected by various possible Supreme Court actions. If the court upholds section 3 of the DOMA, nothing changes. If the court strikes down that part of the law, “Married same-sex couples in the nine states that allow such unions, along with the District of Columbia, become subject to more than 1,000 federal laws and programs and start to receive federal benefits.” Nothing would change in states where same-sex marriage is banned. A third possibility: “The court could decide that it lacks jurisdiction because the two sides – the plaintiff and the Obama administration – agree that the law is unconstitutional and House Republicans do not have standing to defend it.” It’s not clear how things would play out after that point.

Incidentally, several of the conservative Supreme Court justices seemed outraged that the Obama administration broke with precent by deciding not to defend a federal law challenged in court.

By the same token, some of the justices sounded uncomfortable “with providing standing to House Republicans seeking to compel enforcement of DOMA.”

After listening to today’s hearing, most analysts agreed that at least five justices seem prepared to strike down DOMA. Many articles on the hearing are linked here. Sam Baker reported for The Hill,

Justice Anthony Kennedy, the court’s swing vote, seemed to agree with the argument that DOMA interferes with states’ traditional right to define marriage.

“The question is whether the federal government, under our federalism scheme, has the authority to regulate marriage,” Kennedy said.

Adam Liptak and Peter Baker reported for the New York Times,

Justice Anthony M. Kennedy, who most likely holds the decisive vote, returned again and again to the theme that deciding who is married is a matter for the states. The federal government, he said, should respect “the historic commitment of marriage and questions of the rights of children to the states.” […]

If the 1996 law stands, Justice Kennedy said, “you are at real risk with running in conflict with what has always been the essence” of state power, which he said was to regulate marriage, divorce and custody.

All four members of the court’s liberal wing questioned the constitutionality of the law, though they largely focused on equal protection principles rather than on the limits of federal power.

That’s the good news. But if you support marriage equality in every state, the SCOTUS blog’s Tom Goldstein has some bad news for you:

A majority of the Court seems poised in Windsor to invalidate DOMA Section 3 on the theory that the federal government has no interest in adopting a definition of marriage applicable to 1100 statutory provisions that as a practical matter alters the very nature of what it is to be “married.” That role, the Court will rule, is historically reserved to the states. So DOMA is a federalism case. […]

But if DOMA is going to be decided as a federalism case, Hollingsworth becomes a much harder case for the plaintiffs. That ruling in Windsor implies that California should have a parallel right to decide the definition of marriage for itself – i.e., that Proposition 8 should be upheld.

In fact, there is a realistic chance that the Court’s most conservative Justices understood that dynamic from the beginning and for that reason voted to grant certiorari in Hollinsgworth. In effect, they would put the Court in the box fully grappling with the implications of a ruling invalidating DOMA. To then also invalidate Proposition 8, the Court would have to go quite far in applying heightened scrutiny and invalidating the traditional definition of marriage, notwithstanding its professed concerns for states’ rights.

Before this week, some people had speculated that Chief Justice John Roberts might be open to striking down DOMA. However, today he suggested that gays and lesbians don’t need courts to protect their rights anymore.

Looking for another avenue to undercut the case that DOMA was the product of anti-gay animus, Roberts pointed to the “sea change” in public attitudes towards homosexuality and suggested that gays and lesbians were “politically powerful”-a description that would prevent laws dealing with sexual orientation from being subject to heightened scrutiny. “As far as I can tell,” Roberts said, “political figures are falling over themselves to endorse your side of the case.” Until fairly recently, gays and lesbians were barred from employment by states and the federal government, and until 2003, states criminalized homosexual sex-and would still be able to do so, if several of the justices now sitting on the court had their way. Just ask Antonin Scalia, who argued last year that laws criminalizing homosexual sex were constitutional because “for 200 years, it was criminal in every state.” But for Roberts, recent developments in public opinion undo that entire history of discrimination-and render moot the motives of DOMA’s authors.  

Adam Serwer noted at Mother Jones that the attorney defending DOMA today, former Bush administration Solicitor General Paul Clement

never mentioned procreation or potential harm to children. He stuck to a process-oriented defense.

The Defense of Marriage Act, Clement contended, only defined marriage as a hetero endeavor for the purpose of federal laws and, therefore, wasn’t an imposition on the states, even though the law was enacted because legislators feared the states would legalize or recognize same-sex marriage. With DOMA, the federal government was merely seeking “uniformity,” Clement insisted, ensuring that mentions of “marriage” in federal law only applied to unions between men and women. That desire for clarity, he maintained, was enough to justify the law.

Searching for a precedent to justify a federal role in defining marriage, Clement invoked the US government recognition of the marriages of freed slaves during Reconstruction. “In the wake of the Civil War and in Reconstruction, Congress specifically wanted to provide benefits for spouses of freed slaves who fought for the Union,” Clement said. He seemed to be unaware of the irony of citing a federal decision to extend marriage rights to one group in order to justify denying such rights to another group.

Regarding the politics of DOMA, Greg Sargent noticed that some Congressional Republicans are reluctant to talk about taking this case to the Supreme Court.

Not Representative Steve King of Iowa’s fourth Congressional district. On March 26, his office released this web video and a press release highlighting this statement by King:

“The Constitution never contemplated marriage being anything other than between a man and a woman,” said King. “And for the United States Supreme Court to come to an opposite conclusion would mean, I think, a real distortion of the Constitution, which is a contractual guarantee between each of the generations.”

Steven Mazie considers how the case against same-sex marriage has evolved in recent years.

One person who hasn’t evolved is Bob Vander Plaats, one of Iowa’s most-obsessed opponents of marriage equality. He was in Washington this week for a marriage rally. Radio Iowa’s Dar Danielson reported,

Ladies and Gentlemen, America needs leadership today,” Vander Plaats said. “Quite frankly we are here at this moment because too many leaders, too many moms and dads, too many teachers, too many pastors and churches, too many politicians and elected office holders, backed away from the microphone when it was their turn to speak.” […]

“Now we all know that it is the norm for politicians to toss about from poll to poll and from wave to wave and put their finger in the wind,” Vander Plaats says.

“But what we want the Supreme Court to do is look to our founders, look to the wisdom of Bill Graham, look to the wisdom of Pope Francis, not to the perpetual posturing of politicians and define marriage once and for all as a union between a man and a woman.” Vander Plaats told the crowd the Iowa Supreme Court’s ruling that overturned the state law banning gay marriage created a “credibility chasm” between the people of the state and the court that continues today.

He said the U.S. Supreme court risks creating the same problem. “Usurping the people’s voice and vote will send a constitutional shiver down America’s freedom spine. And it will be the height of judicial overreach, where all of us will know that all of our freedoms – no matter which one you hold very dear – is now up for grabs to an unelected court,” Vander Plaats says.

I’m pretty sure the framers of the Constitution didn’t want the Pope or preachers like Billy Graham to determine our government’s policy. And when the Republican-controlled Congress brought DOMA up for a vote during the 1996 presidential election year, that was the ultimate act of political posturing. So many Democrats otherwise considered liberal felt pressure to support that law, which passed both the House and the Senate by large majorities. All five Iowans in the U.S. House at the time voted yes: Republicans Jim Nussle (IA-01), Jim Leach (IA-02), Jim Ross Lightfoot (IA-03), Greg Ganske (IA-04), and Tom Latham (IA-05). Senators Chuck Grassley and Tom Harkin also voted for the DOMA. Harkin was up for re-election in 1996, and Lightfoot was his challenger.

Earlier this year, Harkin and Democratic Representatives Bruce Braley (IA-01) and Dave Loebsack (IA-02) all signed a friend of the court brief arguing that the U.S. Supreme Court should strike down section 3 of the DOMA.

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