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Originally published March 27, 2013 at 8:49 PM | Page modified March 27, 2013 at 9:33 PM

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Supreme Court majority takes issue with DOMA

The four members of the court’s liberal wing questioned the constitutionality of the federal Defense of Marriage Act, while swing vote Anthony Kennedy maintained same-sex marriage is a state issue.

The New York Times

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Rulings on the two gay-marriage cases are expected the last week of June.

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WASHINGTON — The Supreme Court appeared ready Wednesday to strike down a central part of a federal law that defines marriage as the union of a man and a woman as a majority of the justices expressed reservations about the Defense of Marriage Act (DOMA).

On the second day of arguments over same-sex marriage, Justice Anthony Kennedy, who most likely holds the decisive vote, returned again and again to the theme that deciding who is married is a matter for the states.

The federal government, he said, should respect “the historic commitment of marriage and of questions of the rights of children to the states.”

That suggests he is prepared to vote with the court’s four liberal members to strike down the part of the 1996 law that recognizes only the marriage of opposite-sex couples for 1,100 federal laws and programs.

Such a ruling would deliver federal benefits to married same-sex couples in the nine states — including Washington — and the District of Columbia that allow such unions. The provision affects statutes in which marital status is relevant, dealing with tax breaks for married couples, Social Security survivor benefits and, for federal employees, health insurance and leave to care for spouses.

If the 1996 law stands, Kennedy said, “You are at real risk with running in conflict with what has always been the essence” of state power, which he said was to regulate marriage, divorce and custody.

All four members of the court’s liberal wing questioned the constitutionality of the law, though they largely focused on equal-protection principles rather than the limits of federal power.

Justice Ruth Bader Ginsburg, for instance, said the law effectively created “two kinds of marriage: the full marriage and then this sort of skim-milk marriage.”

Paul Clement, who defended the law on behalf of House Republicans, said the federal government was entitled to use a uniform definition of marriage across the nation.

He said countless laws had been enacted with the traditional definition of marriage in mind. When Congress approved the 1996 law, he said, it was worried that if one state extended the definition to include same-sex couples, it would effectively force other states and the federal government to recognize them, too.

Lawmakers were concerned, he said, that “this is a redefinition of an age-old institution.”

Justice Elena Kagan said something else was at work.

“Do we really think Congress was doing this for uniformity reasons or do we think the Congress’ judgment was infected by dislike, by animus, by fear?” she asked.

She read a quote from the 1996 House report on the legislation that explained that one of its purposes was “to express moral disapproval of homosexuality,” evoking a reaction from the audience that sounded like a cross between a gasp and nervous laughter.

Clement responded: “Of course the House report says that. I think if that’s enough to invalidate the statute you should invalidate the statute. But that’s never been enough.” He said that “just because a couple legislators may have had an improper motive” did not mean there was not a legitimate purpose to the law.

Opposing Clement was the Obama administration’s top Supreme Court lawyer, Donald Verrilli, who said the provision of DOMA at issue, Section 3, impermissibly discriminates against gays.

“I think it’s time for the court to recognize that this discrimination, excluding lawfully married gay and lesbian couples from federal benefits, cannot be reconciled with our fundamental commitment to equal treatment under law,” he said.

The arguments came a day after another gay-marriage case was debated before the court, a challenge to California’s Proposition 8, which bans such unions. That argument was murky and muddled, and many of the questions from the justices suggested they were looking for a way to duck the key issue.

By comparison, Wednesday’s case, United States v. Windsor, was modest and the arguments clear. It posed two basic questions:

The first, debated for about 50 minutes, was whether House Republicans have the legal authority to defend the federal law now that the Obama administration has abandoned it. The second, hashed over for about 60 minutes, was whether the law violates the equal-protection guarantees of the Constitution.

As with the California case, justices first puzzled over whether they should even be considering the federal case. Because the Obama administration no longer defends the law in court, House Republican leaders have funded its appellate defense.

Tough questioning brought out possible problems with this approach, including that neither Senate nor House Democrats agreed to join House Republicans in defending the law.

“From where do they (Republicans) derive the right, the statutory right, to take on that responsibility of representing the House in items outside of the House?” Justice Sonia Sotomayor asked.

The Obama administration’s refusal to defend the law, even though officials say they’ll enforce it until it’s struck down, drew scornful comments from conservative justices, with Chief Justice John Roberts suggesting Obama “doesn’t have the courage of his convictions.”

“This is wholly unprecedented,” Roberts said of the odd way the case had reached the court. “You’re asking us to do something we’ve never done before to reach this case.”

“It’s unusual,” acknowledged Sri Srinivasan, a deputy solicitor general.

“No, it’s not unusual,” Roberts said. “It’s totally unprecedented.”

While the conservative justices expressed skepticism that the court should be deciding the matter, Kennedy suggested there was an issue legitimately before them because “it seems to me there’s injury here.”

The case concerns two New York City women, Edith Windsor and Thea Clara Spyer, who married in 2007 in Canada. Spyer died in 2009, and Windsor inherited her property.

The 1996 law did not allow the Internal Revenue Service to treat Windsor as a surviving spouse, and she faced a tax bill of about $360,000 that a spouse in an opposite-sex marriage would not have had to pay.

Windsor sued, and in October the U.S. Court of Appeals for the 2nd Circuit, in New York, struck down the 1996 law. The decision was the second from a federal appeals court to do so, joining one in May from a court in Boston.

When the Supreme Court agreed in December to hear her case, Windsor, 83, said she was thrilled. “I wish Thea was here to see what is going on,” she said.

Material from The Associated Press and McClatchy Newspapers is included in this report.

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