Part IV. The Legal Analysis Of Windsor v. United States - Does DOMA Stand A Chance?
How About Oral
It seemed pretty clear during oral arguments that at least 5 or more of the Justices concurred that Section 3 of DOMA is unconstitutional, with a few Justices clearly having reservations about BLAG’s legal standing.
Chris Johnson explained the legal standing issue and the jurisdiction conflict really well in the Washington Blade.
Standing was so much of an issue as part of the DOMA case that justices allotted extended time and the first half of the oral arguments to consider the issue.
There are two questions: whether House Republican-led Bipartisan Legal Advisory Group has standing to defend DOMA in court, and whether the Supreme Court has jurisdiction to hear the case because the U.S. government appealed even though it got what it wanted when the district ruled against the anti-gay law.
Vicki Jackson, a Harvard law professor hired by the court to answer these questions, made her case for why BLAG doesn’t have standing and the court doesn’t have jurisdiction to decide the issue.
Jackson said the U.S. government lacks standing to appeal because it has not asked the court to overturn lower courts’ decisions, it has asked to affirm them.
“The government has not asked this court to overturn the rulings below so it doesn’t have to pay the $365,000,” Jackson said. “It has asked this court to affirm. And the case or controversy requirement that we’re talking about are nested in an adversarial system where we rely on the parties to state their injuries and make their claims for relief.”
She also expressed doubts about BLAG’s standing, saying separation of powers “will not be meaningful” if Congress stays out of defense of a statute unless it thinks the executive branch is doing its job badly.
It’s difficult to say if the court will rule on the basis of standing because justices challenged the views on whichever attorney was speaking — whether they arguing in favor of standing or not. A ruling on this basis would likely more limited on its impact on gay couples as opposed to a nationwide ruling striking down DOMA.
Or would you prefer Aural
Esteemed writer Jeffrey Toobin covers the Supreme Court for The New Yorker. In his excellent essay that’s entitled “Why the Gay-Marriage Fight Is Over,” he describes how the socio-political climate has changed between 1996 and today.
Indirectly, the two most memorable moments in Wednesday’s argument made clear how much the world had changed—and why the Supreme Court was kind of a sideshow to what’s really going on in the country.
About midway through the argument, Paul Clement, who was representing the House Republicans and defending DOMA, was cruising along. He was portraying DOMA as almost a kind of housekeeping measure, designed to keep federal law consistent across all fifty states. As Clement told it, there was almost no ideological content to the law at all.
Then Justice Elena Kagan swiftly and elegantly lowered the boom on him. She said, “Well, is what happened in 1996—and I’m going to quote from the House Report here—is that ‘Congress decided … to express moral disapproval of homosexuality.’” A collective woo went through the audience. Kagan had the temerity to tell what everyone knew to be the truth—that DOMA was a bigoted law designed to humiliate and oppress gay people.
Clement, an eloquent advocate in oral arguments, was reduced to stammering like Ralph Kramden. He said that was not enough to invalidate the law: “Look, we are not going to strike down a statute just because a couple of legislators may have had an improper motive.” But suddenly it was clear. No one could deny that there was an improper motive—anti-gay prejudice—underlying DOMA.
But the second key moment illustrated the difference between 1996 and 2013. Toward the end of the argument, Roberts asked Roberta Kaplan, the lawyer for Windsor, “You don’t doubt that the lobby supporting the enactment of same sex-marriage laws in different states is politically powerful, do you?” Kaplan—somewhat improbably —denied it. Roberts fought back: “As far as I can tell, political figures are falling over themselves to endorse your side of the case.”
Searching for Utopia
I can’t even fathom an educated guess about how the court will rule in this case. In order to assess the effects of a ruling, we’d have to know the legal grounds for the court’s decision, and there are too many scenarios to even hazard an educated guess.
In a utopian world, the court’s decision would find that any legislation or voter initiative that targets the LGBT community as a separate class of people, is entitled to heightened scrutiny. The principle of judicial heightened scrutiny means that any law that treats LGBT people differently than straight people would violate the Equal Protection Clause, and would be unconstitutional. That’s the way the Justices should go, but the court exhibited a reluctance during oral arguments to go there, because a decision based on heightened scrutiny could invalidate same-sex marriage bans across the country.
Amy Davidson wrote about the marriage inequities that LGBT couples face because of DOMA in “The Skim Milk In Edith Windsor’s Marriage” for The New Yorker.
Outside of the Court, Windsor was asked about a round pin she was wearing. She told the story about how, in 1967, Thea Spyer asked what her co-workers—at IBM, where Edith was one of the few women programmers—would say if she showed up with an engagement ring: “I said, They’d want to know who is he and where is he and when do we meet him.” And so Spyer—“my beautiful, sparkly Thea”—“gave me a circle of diamonds, instead of a diamond ring.” Their engagement lasted forty years until their wedding, four decades later, two years before Spyer died.
Everything that makes a marriage real seemed present in Windsor and Spyer’s partnership—everything that reflects the state’s interest in people being married, like the stable households they set up and the way they can, from the space of their home, engage with their community and look out for each other. After Spyer fell ill with multiple sclerosis, Windsor cared for her. And, though it may be irrelevant legally, they had the qualities we like about marriage, like love and joy. If, as Senator Rob Portman and others have illustrate, getting to know a gay or lesbian person can have a transformative effect, just introducing Windsor to the public is its own victory.
I have faith that the court will do the right thing by invalidating DOMA. That would ensure that the $363,000 is returned to Edith, and they’d restore the respect and dignity to Edith and Thea’s marriage, and all of the other individuals and marriages, that DOMA has harmed. That result would give Edith something priceless, and comparable to the diamond ring she couldn't wear before. And it would restore our faith in the promise that we are all created equal.
We are all created equal - yes indeed.
We are all created equal - yes indeed.
June 2013 --- The Supreme Court will render their decision.
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