DOMA at the dock: Defense of Marriage Act under Supreme Court scrutiny

Published: Wednesday, March 27 2013 9:45 p.m. MDT

In this Oct. 1, 2012, file photo shows the U.S. Supreme Court in Washington. The high court can choose from a wide array of outcomes in ruling on California's Proposition 8 ban on same-sex marriage and the federal Defense of Marriage Act (DOMA), which defines marriage as the union of a man and a woman. The cases will be argued Tuesday, March 26, 2013, and Wednesday; rulings are not likely before late June.


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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.”

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