The number on everyone’s lips at Wednesday’s U.S. Supreme Court hearing was 1,100, the number of federal laws involving marriage and thus affected by the Defense of Marriage Act.
The court is trying to decide if DOMA, as passed in 1996 and signed by President Bill Clinton, is unconstitutional because it discriminates against married gay couples, denying them financial and legal advantages.
In the eye of the storm is Edith Windsor, an 83-year-old from New York who in 2007 married her longtime partner, then terminally ill. Her partner, Thea Spyer, subsequently died, leaving an inheritance to Windsor. But because the federal government does not recognize same-sex marriage, the bequest took a federal tax hit of $363,000.
There is no dispute that if Windsor had been married to a man, her estate tax bill would have been zero.
Like Tuesday’s hearing on California Proposition 8, the court spent half its time Tuesday wrangling over whether it should even decide the case. But Wednesday there seemed little doubt that the court would, in fact, decide whether DOMA was constitutional.
The court must decide if, in strictly defining marriage and thus excluding some married people in some states, Congress violated the equal protection clause of the 14th Amendment.
Other justices said the law creates what Justice Ruth Bader Ginsburg called two classes of marriage, full and "skim-milk marriage." And Justice Elena Kagan homed in on the justification of the law at the time of its passage, which she argued demonstrated it was motivated by animus toward gays.
Swing-voting Justice Anthony Kennedy hit on state autonomy, questioning whether the law undermines states that choose to recognize same-sex marriages.
Conservative lawyer Paul Clement, representing the House Republicans, defended DOMA, in part, by turning Kennedy’s reasoning on its head. Allowing states to define marriage for the federal government, Clement argued, would create two classes of gay marriage, with some covered and others not.
After the day's arguments, most experts agreed that four votes were likely prepared to overturn DOMA, four votes to affirm it, with Kennedy in the middle but leaning toward overturning.
Eyes on Kennedy
As is usually the case in hard-fought Supreme Court cases, all eyes are on Kennedy, who wrote the majority decisions in two landmark gay rights cases, Roemer v. Evans in 1996 and Lawrence v. Texas in 2003.
In both these cases, Kennedy developed a line of reasoning that would allow the court to invalidate a statute by finding it lacked “rational basis,” rather than creating a new “protected class,” which would be a bolder move in constitutional law. Kennedy is thus a likely candidate for writing a similar decision on DOMA.
But there is also reason to suspect that Kennedy might be reluctant to upend an evolving political and social consensus by judicial action. Bill Duncan, director of the Marriage Law Foundation, noted a speech earlier in March in which Kennedy seemed to question whether the court should be inserting itself into an evolving social issue.
“Kennedy commented that people bring all these significant social issues to the court and say, hey, solve these for us,” Duncan said, paraphrasing Kennedy, “But that’s not our role.”
“I think it’s a serious problem,” Kennedy said in Sacramento, Calif., on March 7. “A democracy should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say. And I think it’s of tremendous importance for our political system to show the rest of the world — and we have to show ourselves first — that democracy works because we can reach agreement on a principled basis.”
Stanford law professor Michael McConnell agrees with Duncan that Kennedy will be reluctant to sweep too broadly, but does expect his crucial fifth vote to go against DOMA.
Kennedy’s most likely argument, McConnell thinks, is that “the definition of marriage in our constitutional tradition is one better left to the states, and the Congress overstepped its authority when it declared a single nationwide definition of marriage for federal law purposes.”
The case only touches Section 3 of DOMA, which defines marriage for federal law. It does not affect Section 2, which allows states to decline to recognize same-sex marriages performed in other states.
But before it could even get to that question, the court had to decide whether, as things stand, it could decide the case. The procedural dispute focused on whether the U.S. House of Representatives could properly defend the law, once the Obama administration chose not to do so.
The House Republicans, the Obama administration and a lawyer appointed by the court specially to argue the issue spent the first 50 minutes Wednesday discussing whether the House Republican leadership can defend the law in court because the administration decided not to, and whether the administration forfeited its right to participate in the case because it changed its position and now argues that the provision is unconstitutional.
Both Donald Verrilli, the Obama administration's top Supreme Court lawyer, and Roberta Kaplan, the lawyer for Windsor, told the court that views about gay people and marriage have shifted dramatically since 1996.
"Why are you so confident in that judgment? How many states" allow same-sex unions? Justice Antonin Scalia asked Kaplan.
Nine, she said.
"So there's been a sea change since 1996," Scalia said, doubtfully.
But Chief Justice John Roberts jumped on the idea of a rapid shift in opinion to suggest that perhaps gays and lesbians do not need special protection from the court. "As far as I can tell, political leaders are falling all over themselves to endorse your side of the case," Roberts said.
Political power for gay rights has legal implications because the court has historically reserved special status under the equal protection clause for “discrete and insular minorities” that are judged vulnerable in the rough and tumble of majoritarian politics.
The motivation behind the 1996 federal law, passed by large majorities in Congress and signed by Clinton, was questioned repeatedly by Kagan.
She read from a House of Representatives report explaining that the reason for the law was "to express moral disapproval of homosexuality." The quote produced an audible reaction in the courtroom.
Paul Clement, representing the House Republican leadership in defending the law, said the more relevant question is whether Congress had "any rational basis for the statute." He supplied one, the federal government's interest in treating same-sex couples the same no matter where they live.
Clement said the government does not want military families "to resist transfer from West Point to Fort Sill because they're going to lose their benefits." The U.S. Military Academy at West Point is in New York, where same-sex marriage is legal, and Fort Sill is in Oklahoma, where gay marriages are not legal.
Opposing Clement, Verrilli said the provision of DOMA at issue, Section 3, impermissibly discriminates against gay people.
"This statute is not called the Federal Uniform Benefits Act," Verrilli said. The administration wants the court to apply a level of scrutiny it applies to discrimination against other disadvantaged groups and that makes it harder for governments to justify those laws.
Reflecting the high interest in the cases, the court released an audio recording of Wednesday's argument, just as it did Tuesday.
Eric Schulzke writes on national politics for the Deseret News. He can be contacted at email@example.com.