For the second consecutive day, the Supreme Court heard a case in which marriage equality advocates argued that state laws banning same-sex matrimony deserve “heightened scrutiny,” and should be struck down if the Court finds they violate the Constitution. Today’s argument in Windsor v. United States focused on the Defense of Marriage Act (DOMA), the federal law that denies same-sex couples the same rights that heterosexual married couples enjoy.
Edith Windsor — who married Thea Spyer, her partner of 40 years, in Canada in 2007 — is suing the government for the $363,000 she had to pay in estate taxes after Spyer died. Married heterosexual couples do not pay such taxes on assets inherited from spouses.
Justice Anthony Kennedy — who as in the Proposition 8 case heard yesterday is expected to be the deciding vote in the DOMA case, if the court finds it has jurisdiction — seemed to express that DOMA may make the federal government too “intertwined with citizens’ daily lives.”
For the second day in a row, the scene in front of the Court was chaotic with supporters and opponents of equal marriage energetically demonstrating. On social media, tens of thousands joined in by showing their support of same-sex couples by using the “equal” sign as their profile picture.
Also for the second day in row, the opening argument revolved around jurisdiction. Today’s argument took on the complex issues presented by the president’s decision to have his Justice Department continue to enforce a law that he has decided is not Constitutional.
Two conservative justices sprayed criticism at President Obama for deciding that the Justice Department would not defend DOMA in front of the Court.
“If he has made a determination that executing the law by enforcing the terms is unconstitutional, I don’t see why he doesn’t have the courage of his convictions and execute not only the statute, but do it consistent with his view of the Constitution, rather than saying, oh, we’ll wait till the Supreme Court tells us we have no choice,” Chief Justice John Roberts said.
The Court appointed attorney Vicki Jackson to argue that they did not have jurisdiction to hear the case. Being forced to do this did not please Justice Antonin Scalia.
“I’m wondering if we’re living in this new world where the attorney general can simply decide, yeah, it’s unconstitutional, but it’s not so unconstitutional that I’m not willing to enforce it,” he said. “If we’re in this new world, I don’t want these cases like this to come before this Court all the time.”
Paul D. Clement represented the Republican majority in the House who have spent millions to support the act, which Clinton signed into law before the 1996 election. Clinton has recently announced that he saw DOMA as a stopgap measure designed to prevent a Constitutional amendment banning gay marriage. The former president now says it is unconstitutional.
Clement — whom Bloomberg‘s SCOTUSBlog called “one of the most talented lawyers appearing these days before the Court” — strained to avoid most of the religious-tinged arguments that are conventionally made against same-sex marriage.
Instead Clement stuck to the notion of “uniformity,” suggesting the purpose of DOMA was to make it simple for the federal government to decide who is married and who is not.
This notion did not impress Justice Kennedy, who seemed to think it applied to Windsor’s tax case specifically, but DOMA doesn’t stop there.
It applies to “1,100 laws, which in our society means that the federal government is intertwined with the citizens’ day-to-day life, you are at — at real risk of running in conflict with what has always been thought to be the essence of the state police power, which is to regulate marriage, divorce, custody,” he said.
Justice Ruth Bader Ginsburg argued that DOMA created an inferior brand of marriage for a select group of Americans.
“There are two kinds of marriage,” Ginsburg said. “Full marriage and the skim-milk marriage.”
When Donald Verrilli, the U.S. Solicitor General, argued that there had been a “sea change” in favor of same-sex marriage since 1996, Scalia was doubtful.
Roberts used that moment to suggest that gay couples are not entitled to “heightened scrutiny.”
“As far as I can tell, political leaders are falling all over themselves to endorse your side of the case,” Roberts said.
But Scalia’s nor Roberts’ ruling on the case does not appear to be in doubt — Kennedy’s does. And while many experts are suggesting he seems prone to question DOMA, just as many are reminding the public how certain experts were that Obamacare’s individual mandate would be overturned about a year ago.