Smart. Sharp. Funny. Fearless.

Monday, December 09, 2019 {{ new Date().getDay() }}

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.”

You can listen to the argument here and read the transcript here.

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.

Photo by expertinfantry/ CC BY 2.0

At this moment, the president of the United States is threatening to "throw out" the votes of millions of Americans to hijack an election that he seems more than likely to lose. Donald Trump is openly demanding that state authorities invalidate lawful absentee ballots, no different from the primary ballot he mailed to his new home state of Florida, for the sole purpose of cheating. And his undemocratic scheme appears to enjoy at least nominal support from the Supreme Court, which may be called upon to adjudicate the matter.

But what is even worse than Trump's coup plot — and the apparent assent of unprincipled jurists such as Supreme Court Justice Brett Kavanaugh — is the Democratic Party's feeble response to this historic outrage. It is the kind of issue that Republicans, with their well-earned reputation for political hardball, would know how to exploit fully and furiously.

They know because they won the same game in Florida 20 years ago.

During that ultimate legal showdown between George W. Bush and Al Gore, when every single vote mattered, a Democratic lawyer argued in a memorandum to the Gore team that the validity of absentee ballots arriving after Election Day should be challenged. He had the law on his side in that particular instance — but not the politics.

As soon as the Republicans got hold of that memo, they realized that it was explosive. Why? Many of the late ballots the Democrats aimed to invalidate in Florida had been sent by military voters, and the idea of discarding the votes of service personnel was repellent to all Americans. Former Secretary of State James Baker, who was overseeing the Florida recount for Bush, swiftly denounced the Democratic plot against the soldiers, saying: "Here we have ... these brave young men and women serving us overseas. And the postmark on their ballot is one day late. And you're going to deny him the right to vote?"

Never mind the grammar; Baker's message was powerful — and was followed by equally indignant messages in the following days from a parade of prominent Bush backers including retired Gen. Norman Schwarzkopf, the immensely popular commander of U.S. troops in the Desert Storm invasion that drove Saddam Hussein's army out of Kuwait. Fortuitously, Schwarzkopf happened to be on the scene as a resident of Florida.

As Jeffrey Toobin recounted in Too Close to Call, his superb book on the Florida 2000 fiasco, the Democrats had no choice but to retreat. "I would give the benefit of the doubt to ballots coming in from military personnel," conceded then-Sen. Joseph Lieberman, Gore's running mate, during a defensive appearance on Meet the Press. But Toobin says Gore soon realized that to reject military ballots would render him unable to serve as commander in chief — and that it would be morally wrong.

Fast-forward to 2020, when many of the same figures on the Republican side are now poised to argue that absentee ballots, which will include many thousands of military votes — should not be counted after Election Day, even if they arrived on time. Among those Republicans is Justice Kavanaugh, who made the opposite argument as a young lawyer working for Bush in Florida 20 years ago. Nobody expects legal consistency or democratic morality from a hack like him, but someone should force him and his Republican colleagues to own this moment of shame.

Who can do that? Joe Biden's campaign and the Democratic Party ought to be exposing the Republican assault on military ballots — and, by the same token, every legally valid absentee ballot — every day. But the Democrats notoriously lack the killer instinct of their partisan rivals, even at a moment of existential crisis like this one.

No, this is clearly a job for the ex-Republicans of the Lincoln Project, who certainly recall what happened in Florida in 2000. They have the attitude and aptitude of political assassins. They surely know how to raise hell over an issue like military votes — and now is the time to exercise those aggressive skills in defense of democracy.

To find out more about Joe Conason and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.