DOMA’s Day At The Supremes



I am going to do something different today and put up a post for semi-live coverage – and discussion – of the DOMA oral arguments in the Supreme Court this morning. First, a brief intro, and then I will try to throw tidbits in here and there as I see it during and after the arguments.

The case at bar is styled United States v. Windsor, et al. In a nutshell, Edith Windsor was married to Thea Spyer, and their marriage was recognized under New York law. Ms. Spyer passed away in 2009 and Windsor was assessed $363,000.00 in inheritance taxes because the federal government, i.e. the IRS, did not recognize her marriage to Spyer in light of the Defense of Marriage Act, or DOMA. Litigation ensued and the 2nd Circuit, in an opinion written by Chief Judge Dennis Jacobs, struck down DOMA as unconstitutional and ruled in favor of Edith Windsor. Other significant cases in Circuit Courts of Appeal hang in the lurch of abeyance awaiting the Supreme Court decision in Windsor, including Golinski v. Office of Personnel Management, Gill v. OPM and Pedersen v. Office of Personnel Management.

As an aside, here is a fantastic look at the restaurant where Edith Windsor and Thea Spyer met nearly 50 years ago.

Arguing the case will be Solicitor General Donald B. Verrilli again for the United States, Paul Clement for the Bi-Partisan Legal Advisory Group (BLAG) on putative behalf of Congress, because the Obama Administration ceased defending DOMA on the grounds it was discriminatory and unconstitutional, and Robbie Kaplan for Edith Windsor. Clement and Verrilli are well known by now, but for some background on Robbie Kaplan, who is making her first appearance before the Supremes, here is a very nice article. Also arguing will be Harvard Law Professor Vicki Jackson who was “invited” by SCOTUS to argue on the standing and jurisdiction issue, specifically to argue that there is no standing and/or jurisdiction, because the Obama Administration quit defending and BLAG will argue in favor of standing and jurisdiction.

Here is a brief synopsis of the argument order and timing put together by Ed Whelan at National Review Note: I include Whelan here only for the schedule info, I do not necessarily agree with his framing of the issues).

Okay, that is it for now, we shall see how this goes!

Live Updates:

10:39 am It appears oral arguments are underway after two decisions in other cases were announced.

10:51 am RT @SCOTUSblog: #doma jurisdiction arg continues with no clear indication of whether majority believes #scotus has the power to decide case.

11:00 am By the way, the excellent SCOTUSBlog won a peabody award for its coverage of the Supreme Court.


11:15 am Wall Street Journal is reporting: Chief Justice John Roberts told attrorney Sri Srinivasan, the principal deputy solicitor general, that the government’s actions were “unprecedented.” To agree with a lower court ruling finding DOMA unconstitutional but yet seeking the Supreme Court to weigh in while it enforces the law is “has never been done before,” he said.

11:20 am Is anybody reading this, or is this a waste?

11:32 am @SCOTUSblog Kennedy asks two questions doubting #doma validity but nothing decisive and Chief Justice and Kagan have yet to speak.

11:40 am Wall Street Journal (Evan Perez) Chief Justice Roberts repeatedly expressed irritation at the Obama administration, telling Ms. Jackson, the court-appointed lawyer, and without specifically mentioning the administration, that perhaps the government should have the “courage” to execute the law based on the constitutionality rather instead of shifting the responsibility to the Supreme Court to make a decision.

11:45 am Wall Street Journal (Evan Perez) Paul Clement, attorney for lawmakers defending the law, argued that the went to the very heart of Congress’s prerogatives. Passing laws and having them defended was the “single most important” function of Congress, he argued.

11:52 am Wall Street Journal (Evan Perez) Justice Scalia and Mr. Srinivasan parried on whether Congress should have any expectation that laws it passes should be defended by the Justice Department. Mr. Srinivasan said he wouldn’t give an “algorithm” that explained when Justice lawyers would or wouldn’t defend a statute, but ceded to Justice Scalia’s suggestion that Congress has no “assurance” that when it passes a law it will be defended. That’s not what the OLC opinion guiding the Justice Department’s actions in these cases says, Justice Scalia interjected.

11:56 am Associated Press (Brent Kendall) One of the last questions on the standing issue came from Justice Samuel Alito, who asked whether the House could step in to defend DOMA without the Senate’s participation, given that it takes both chambers to pass a law.

11:59 am Bloomberg News During initial arguments today on the 1996 Defense of Marriage Act, Justice Anthony Kennedy suggested that a federal law that doesn’t recognize gay marriages that are legal in some states can create conflicts.
“You are at real risk of running in conflict” with the “essence” of state powers, Kennedy said. Still, he also said there was “quite a bit” to the argument by backers of the law that the federal government at times needs to use its own definition of marriage, such as in income tax cases.
Justice Ruth Bader Ginsburg said that when a marriage under state law isn’t recognized by the federal government, “One might well ask, what kind of marriage is this?”

12:05 pm @SCOTUSblog Final update: #scotus 80% likely to strike down #doma. J Kennedy suggests it violates states’ rights; 4 other Justices see as gay rights.

12:07 pm The argument at the Court is well into the merits portion of the case now

12:09 pm Wall Street Journal (Brent Kendall) Justice Kennedy, however, jumped in with federalism concerns, questioning whether the federal government was intruding on the states’ territory. With there being so many different federal laws, the federal government is intertwined with citizens’ day-to-day lives, he said. Because of this, DOMA runs the risk of running into conflict with the states’ role in defining marriage, he said.

12:12 pm It is pretty clear to me, from a variety of sources I am tracking, that the Court has serious problems with DOMA on the merits. Clement is getting pounded with questions on discrimination, conflict with state laws and federalism concerns. Pretty clear that if standing is found, DOMA is going down.

12:15 pm Wall Street Journal (Brent Kendall) Justice Ginsburg again says the denial of federal benefits to same-sex couples pervades every area of life. DOMA, she said, diminished same-sex marriages to “skim-milk” marriages. Justice Elena Kagan (pictured) follows a short time later saying DOMA did things the federal government hadn’t done before, and she said the law raised red flags.


12:30 pm @AdamSerwer Con Justices contemptuous of Obama decision not to defend DOMA but still enforce law. Kennedy said “it gives you intellectual whiplash”

Okay, as I said earlier, if the Justices can get by the standing issue, it seems clear that DOMA is cooked. I think they will get by standing and enter a decision finding DOMA unconstitutional as to Section 3, which is the specific part of the law under attack in Windsor. That effectively guts all of DOMA.

That is it for the “Live Coverage” portion of the festivities today. It should be about an hour and a half until the audio and transcript are available. As soon as they are, I will add them as an update at the top of the post, and will then put this post on the top of the blog for most of the rest of the day for further discussion. It has been bot a fascinating and frustrating two days of critical oral argument; please continue to analyze and discuss!

31 replies
  1. Lex says:

    If SCOTUS doesn’t find the DOMA unconstitutional, they’re fools. It’s simple separation of church and state, and the easiest solution would be to remove the power to legally marry from churches. As it’s a state controlled civil contract (even when a priest officiates), make the state contract only issued by the state. For the religious it means two ceremonies.

    The only argument for defining marriage as between a man and a woman requires religious foundations; having US federal law adopt that definition means that it is establishing state religion and discriminating against the other and non-religious.

  2. JTMinIA says:

    @Lex: “The only argument for defining marriage as between a man and a woman requires religious foundations….”


    You might consider it a bad argument, but the procreation argument is out there and is featured all the time.

  3. P J Evans says:

    It’s a ridiculous argument, though: nearly everyone knows at least one couple with no children or who married after the age of 50: happy marriages with no procreation. (And that argument is ALWAYS framed by religion.)

    Heck, George and Martha Washington had no children!

  4. bmaz says:

    Okay, the “live portion” of this here show is about to get off to its rocky start. I will be adding quick little hits in the main body of the post.

  5. JTMinIA says:

    @P J Evans: I already agreed that it might be a bad argument; if you’d like to me come out and say that I think it’s a terrible argument, then I will. My point was that it is an argument.

    IMO, it is orders of magnitude better to shoot down the other side’s bad arguments than to pretend that they don’t exist. If more people would listen to other sides’ arguments and shoot them down, we wouldn’t be in this mess because more people would be atheist.

  6. Lex says:

    The procreation argument is inexorably tied to the religious definition of marriage and has no bearing on marriage as a civil contract. A married couple doesn’t need children to have privileged legal conversations, be exempt from estate taxes, etc.

    Procreation as a product of marriage is about being fruitful and multiplying for the sake of making more believers. As far as civil contracts go, unmarried parents can get as many or more state benefits for children than married parents.

    The problem is that we intermingled the spiritual marriage performed by churches with the state contract of marriage. I’d bet a lot that opponents of same-sex marriage believe it will force their church to perform same-sex marriages.

    The most simple answer to the “issue” would be to separate the two forms. Other countries do it. Your church marriage means nothing legally, you’d have to go through the state for a legal marriage.

  7. Phil Perspective says:

    11:20 am Is anybody reading this, or is this a waste?

    It’s not a waste, it’s not even 9am on the West Coast yet!! Not everyone is as earlier a riser as you, Bmaz! ;-)

  8. JTMinIA says:

    @Lex (and anyone else who didn’t get what I meant in Post #2):

    OK, I’ll bite (although I really think that you’re missing my rather simple point about how to have an honest argument with people with whom you disagree).

    If the concept of marriage is “inexorably tied to religion,” do you conclude that non-human species that effectively marry are religious? Let me give you two examples (that I find amusing): the albatross and the American bald eagle.

    Again, before you flip out and start saying (or even thinking) that I somehow don’t support the right of any two people to marry, please try to get my point. Just brushing off the arguments of the other side as non-existent because you think that said argument is weak or worse is not how to have an honest argument. Take the minute to listen and then shoot it down.

  9. grayslady says:

    This whole issue of defending laws came up yesterday in the Prop 8 hearings. Seems to me, the only reason for having the courts involved is to determine whether the laws are permissible under either the state or Federal constitution. Surprised no one seems to be presenting this argument as to why the laws aren’t being actively defended.

  10. Bill Michtom says:

    @JTMinIA: Are there any legal restrictions on the couplings of the albatross and the American bald eagle?

    So much for that argument. ;-) While I’m being snarky, I don’t think how to argue “correctly” includes giving validity to fallacious bullshit.

  11. JTMinIA says:

    I give. Why show how the some-animals-mate-for-life argument is fallacious when you can just say it and toss in an invective?

    I have to tell you (plural) (as I also have to several well-known atheists), we would all be a lot better off if we convinced the other side, rather than just won a court case.

    ps. of course the some-animals-mate-for-life argument is bullshit … tee hee

  12. P J Evans says:

    If more people would listen to other sides’ arguments and shoot them down, we wouldn’t be in this mess because more people would be atheist.

    Ah, the old ‘rule the way I want, and we’ll all have sparkly pink unicorns’ argument. (I saw a version of this at SFGate, where the conclusion was something like ‘rule for gay marriage, and we can all have free love’. Really. Also a lot of ‘gay marriage wins, therefore polygamy, incest, etc, are legal also’.)

  13. bmaz says:

    That is it for the “Live Coverage” portion of the festivities today. It should be about an hour and a half until the audio and transcript are available. As soon as they are, I will add them as an update at the top of the post, and will then put this post on the top of the blog for most of the rest of the day for further discussion. It has been bot a fascinating and frustrating two days of critical oral argument; please continue to analyze and discuss!

  14. phred says:

    @P J Evans: Care to include those of us who married before the age of 50? Speaking for myself and several other childless couples I know, I would like to think our marriages are real ones despite our lack of procreativity during our birth control years. Not to mention our friends and loved ones who tried like heck to procreate, but didn’t succeed.

    JTM, yes, the procreation argument is out there, but it is a red herring. My marriage is legal and recognized every which way and there isn’t a soul making an argument that it isn’t on the basis of the absence of children in our household. So I’m with Lex here. The man/woman business is absolutely rooted in religious tradition.

    BTW bmaz, in regards to your post at 11:20, of course it’s not a waste, some of us are just time-shifting our perusal of your liveblog ; )

  15. Lex says:

    I’m not entirely sure that species which mate for life get married. At least I’ve never seen a ceremony or documentation with legal standing. If you would like to go down this simile route, I think you’ll need to find some biological evidence of humans and other primates mating for life. To which I will say, “Bonobo.” Or maybe that’s why you didn’t use primates as your example.

    Don’t get me wrong. I don’t so much support same sex marriage as see the law that prohibits it as irrational, unconstitutional, and an example religious bigotry. I don’t support marriage at all. I think it’s a stupid institution whether between man and woman, two men, or a dwarf and a goat that want to pair bond for life.

    However, if we live in a nation where all are created equal, yada yada yada, then I would think that it is the responsibility of those who’d like to make us unequal before the law to prove why it should be such. If this is also a nation where church and state are separate, then it is the responsibility of those who want religious based laws to explain exactly how they’re not religiously based. How swans chose to mate and live is immaterial to such a discussion.

  16. P J Evans says:

    I have no problem with that – but I put it as ‘over 50’ because there’s really not going to be procreation involved there. (Some of us just aren’t wired for it, anyway. I never wanted to have kids.)

  17. bmaz says:

    @P J Evans: Man, the almost instantaneous audio and transcript is REALLY a wonderful thing. If SCOTUS is not going to televise (and they are not), they should provide this speed of service on every case.

  18. bittersweet says:

    I keep wondering why you have to be legally married to leave your money to someone you want to support. What does marriage” have to do with “take care of”? Why can a heterosexual female not leave her money to a dear friend who was not lucky enough to have her heterosexual husband leave her enough to survive into old age upon? (Same argument for health insurance!) The premise is bullshit. If they want to litigate sex, then be honest about it. However sex should have nothing to do with taking care of loved ones. (Hell most marriages have very little sex by the time inheritance and end of life decisions come along, (if they ever did). Why should a woman have to give up her body to a man just to get health insurance?
    Tax law seems to be based upon religious law, and only the rich get to keep all of their money! …sigh.

  19. beowulf says:

    “The most simple answer to the “issue” would be to separate the two forms. Other countries do it. Your church marriage means nothing legally, you’d have to go through the state for a legal marriage.”

    If anything is guaranteed to drive social conservatives crazier than gay marriage its the prospect of… well, pick the Drudge headline of your choice— Big sis bans straight marriage / Obama declares your marriage illegal /Eric Holder answers “does anyone object to this marriage: with drone strike, etc.

    Seriously, short of dropping the age of consent to 10, I can’t think of a public policy more likely to lead to armed sedition than telling straight couples their marriages are no longer valid (no matter how many times you explain that’s not what you mean, that is certainly how they’ll take it

    Also, John Roberts makes a damn good point, if Obama believes DOMA is unconstitutional, he should have made that govt policy and take on all comers in court (assuming anyone had standing) instead of playing mother, may I with the Supreme Court.

  20. bmaz says:

    @beowulf: The Obama Administration brief/argument was just asinine on so many level it is laughable. Too cute by a half threading the needle is being too kind. It was simply bullshit. Which I may have pointed out before….

  21. bg says:

    It seems like the marriage license (issued by the local municipality and part of any marriage) is the legal document on the civil side. It seems like we already have two sides (for those who choose to marry in a church), we just need to make sure the legal form is gender neutral.

  22. HotFlash says:

    ‘Scuse me!!! This whole argument is atupid. I am bi, have had several partners/lovers of whatever sex, and hello — this is not about children, it is about $$$$$$$!! This ‘committed relationships’ shit is exactly that. Humans do not necessarily mate for life, and get over that. Why is the govt in the marriage business? Whoa! It is about taxes, inheritance, survivor’s rights, visitation rights, but mostly taxes. Umm, taxes. Why is *your* right to love whoever/whenever the biz of either church or state? Neither the government nor any church has the right to tell anyone who they can love. Or how long they have to love them for.

    The rights of *children* of whatever union, is another matter, as are property rights on the disolution of a union.. But I do not see any argument, from either side, protecting or even addressing those issues that. Am I missing something? In a *civilized* country, as mine (Canada), income taxes are filed separately, although there are restrictions on who can file child care expenses and such. Makes a big diff! Why is the govt in the marriage biz? Makes no sense.

  23. guest says:

    Just my overpriced 2 cents, but as a gay man at the midcentury mark, I absolutely can’t imagine that the Scotums will make gay marriage legal, or worth more than the elevated, local law “domestic partnership” status it now has in a few states. They will find a way to let anti-gay states stay anti-gay, including California. Especially with the worthless Kennedy and slick Roberts as the swing votes. Kennedy is a pathetic hack, and Roberts is enough of a sophist to put an intelectual shine on that whatever turd they squeeze out. Cokie’s crowd will eat it up.
    Maybe they will punish Obama and Holder by forcing the case back to a lower court for them to make a real effort to defend DOMA. But Prop 8 is going nowhere as long as Californians still support it.
    I think the best case scenario possible to come out would be some sort of federal marriage benefits for gay couples in states with rights for gays, but ones we would lose as soon as we crossed the wrong state boundaries. And I think that is a real longshot.
    Sorry, but I was a young closet case when the travesty of Hardwick (?) came out in the mid-80’s. These conservatives have no principles, and no concern for justice, freedom or fairness when those are at odds with their prejudices. I wouldn’t bet on gay marriage recognized at the federal level for at least another decade or two.

  24. beowulf says:

    “We just need to make sure the legal form is gender neutral”

    Hmm, that gives me a thought. Maybe the solution is to make marriage English-only. A marriage license would only be issued to man and wife, but a licencia de matrimonio? That’s a different kettle of fish, it could be issued to any two esposos.

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