Thoughts and Reflections on the DOMA Oral Arguments

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While yesterday's oral arguments in Hollingsworth v. Perry were somewhat disappointing given that they seemed to foretell that no broad ruling in support of a constitutional right to gay marriage will be forthcoming, the oral arguments today in United States v. Windsor appear much more promising.  Indeed, many are now predicting that the Federal Defense of Marriage Act that will be ruled unconstitutional.  Moreover, the argument and questions from the justices helped to underscore that the entire purpose of DOMA was and always has been to discriminate against gay and lesbian Americans.  And true to form, just as was the case with ending segregation, those who are supporting bigotry are thumping on their Bibles as justification for their hate, bigotry and rank discrimination.  A piece at SCOTUS Blog looks at today's events.  Here are highlights:

If the Supreme Court can find its way through a dense procedural thicket, and confront the constitutionality of the federal law that defined marriage as limited to a man and a woman, that law may be gone, after a seventeen-year existence. That was the overriding impression after just under two hours of argument Wednesday on the fate of the Defense of Marriage Act.

That would happen, it appeared, primarily because Justice Anthony M. Kennedy seemed persuaded that the federal law intruded too deeply into the power of the states to regulate marriage, and that the federal definition cannot prevail. The only barrier to such a ruling, it appeared, was the chance – an outside one, though — that the Court majority might conclude that there is no live case before it at this point.

And one of the most talented lawyers appearing these days before the Court — Washington attorney Paul D. Clement — faced fervent opposition to his defense of DOMA from enough members of the Court to make the difference. He was there on behalf of the Republican leaders of the House (as majority members of the House’s Bipartisan Legal Advisory Group), defending the law because the Obama administration has stopped doing so.

Justice Kennedy told Clement that there was “a real risk” that DOMA would interfere with the traditional authority of states to regulate marriage. Kennedy also seemed troubled about the sweeping breadth of DOMA’s Section 3, noting that its ban on benefits to already married same-sex couples under 1,100 laws and programs would mean that the federal government was “intertwined with citizens’ daily lives.” He questioned Congress’s very authority to pass such a broad law.

Moreover, Kennedy questioned Clement’s most basic argument — that Congress was only reaching for uniformity, so that federal agencies would not have to sort out who was or was not married legally in deciding who could qualify for federal marital benefits, because some states were on the verge of recognizing same-sex marriage.

Justice Kennedy seemed to be leaning toward finding that there did exist a live controversy — between the government and Ms. Windsor, over whether she is entitled to a refund of an estate tax she paid on her late spouse’s estate. But Chief Justice John G. Roberts, Jr., commented that the Court had never ruled on a case in which all of the parties involved agreed — as he suggested would be the case with the government and Ms. Windsor sharing their opposition to DOMA.

Analysis at Towleroad also looks at  the ridiculousness of the arguments of the DOMA supporters:

Shortly after came a question from Justice Alito -- what is the purpose of something like federal favorable tax treatment for married couples: is it to foster traditional marriage or to focus on support households that function as a single economic unit? -- that may be that rare instance where a question can tell us where the Court is going. The conservative Alito was expressing the point we have discussed before that DOMA cannot be about encouraging heterosexuals to marry because it deals with the benefits given after two people decide to get married. Those benefits are about a married couple functioning together, not about the sex or sexual orientation of those married. This is a conservative justice criticizing the marriage rationale for DOMA. I think we saw evidence of DOMA's downfall here.

It was Mr. Clement's response to Justice Alito's question that was perhaps the most remarkably ironic and illogical statement of the entire argument: DOMA is constitutional because Congress has an interest in treating all gay couples equally. Without DOMA, Mr. Clement said, gay couples in marriage equality states would get federal benefits, but gay couples in marriage discrimination states would not.

I was floored when I heard that, and I imagined that Mr. Clement's head would cartoonishly explode after such nonsense. He argues that precisely because some states ban gays from marrying, a gay couple in one state would get federal benefits and a gay couple in another state would not get benefits if we got rid of DOMA. That means that the government has an interest in treating all gay couples the same, but different (and worse) than heterosexual couples.

What followed was a pretty remarkable 10 minutes that can charitably be described as target practice from all sides. Justice Kagan reminded Mr. Clement that some members of Congress had improper, discriminatory motives for passing DOMA. Justice Kennedy said the entire law didn't make sense, with Section 2 purporting to support states' rights and Section 3 (at issue in this case) taking states' rights away. What Justice Kennedy missed was the implication of juxtaposing Sections 2 and 3: the gratuitous recitation of current law in Section 2 (one state does not have to recognize gay marriages in another state if they violate public policy), coupled with the anti-gay federal definition of marriage in Section 3, proves that Congress didn't really care about states' rights; if it really cared about states' rights, it would have never passed Section 3. Rather, it cared only about discriminating against gays, hence the inconsistency on states' rights. Justice Ginsburg highlighted the multitude of ways that DOMA turns valid gay marriages into "skim-milk" marriages, implying that the only reason someone could support DOMA is if he or she felt diluting gay marriages was somehow a good thing. Mr. Clement struggled to respond, returning often to his talking points about how the federal government always meddles in marriage.

In short, it wasn't pretty and the bigotry and anti-gay animus behind DOMA's enactment became all too obvious.