It's All Politics
5:08 pm
Wed March 27, 2013

Skim Milk, States' Rights And Political Clout: The High Court And DOMA

Originally published on Wed March 27, 2013 6:17 pm

The U.S. Supreme Court heard arguments Wednesday in a challenge to the 1996 Defense of Marriage Act, which defines marriage as between "one man and one woman as husband and wife."

It was the court's second and final day of hearing appeals involving same-sex marriage laws. And it served up some memorable observations from the high court denizens.

Justice Ruth Bader Ginsburg characterized same-sex unions under DOMA, which limits federal spousal benefits to heterosexual couples, as the equivalent of "skim milk" marriages.

And Chief Justice John Roberts asserted that gay people are not a powerless minority because "political figures are falling over themselves" to side with them.

On Tuesday, the justices appeared uncertain about how they might decide a challenge to California's Proposition 8 ban on same sex marriage.

But the line of questioning in Wednesday's DOMA arguments suggested that there could be five votes to overturn the law — if the court gets to the merits of the case.

The justices must first decide if the case belongs in the Supreme Court.

It again appeared that Justice Anthony Kennedy could be the crucial vote. So, again, it bears repeating that everyone paid close attention to what he had to say.

Here are five important questions that emerged, and some key comments from the participants:


1. In prohibiting same-sex spouses from accessing scores of federal benefits available to those in traditional marriages, does DOMA impose unconstitutional penalties on gay married couples?

Justice Anthony Kennedy: "When it has 1,100 laws, which in our society means that the federal government is intertwined with the citizens' day-to-day life, you are 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."

Justice Samuel Alito: "Suppose we look just at the estate tax provision that's at issue in this case, which provides specially favorable treatment to a married couple as opposed to any other individual or economic unit. What was the purpose of that? Was the purpose of that really to foster traditional marriage, or was Congress just looking for a convenient category to capture households that function as a unified economic unit?"

Justice Ruth Bader Ginsburg: "It's as Justice Kennedy said, 1,100 statutes, and it affects every area of life. And so he was really diminishing what the state has said is marriage. You're saying, no, state said two kinds of marriage; the full marriage, and then this sort of skim-milk marriage."

(Laughter.)


2. Does DOMA impinge on states' rights?

Justice Kennedy: "Well, I think ... it is a DOMA problem. The question is whether or not the federal government, under our federalism scheme, has the authority to regulate marriage."

Justice Sonia Sotomayor: "But what gives the federal government the right to be concerned at all at what the definition of marriage is? Sort of going in a circle. You're saying ... we can create this special category — men and women — because the states have an interest in traditional marriage that they're trying to protect. How do you get the federal government to have the right to create categories of that type based on an interest that's not there, but based on an interest that belongs to the states?"


3. Has the Obama administration abrogated its responsibility by continuing to enforce DOMA, while refusing to defend it in court?

Justice Antonin Scalia: "And 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.' If we're in this new world, I — I don't want these cases like this to come before this court all the time. And I think they will come all the time if that's ... the new regime in the Justice Department that we're dealing with."

Deputy U.S. Solicitor General Sri Srinivasan: "Justice Scalia, one recognized situation in which an act of Congress won't be defended in court is when the president makes a determination that the act is unconstitutional. That's what happened here. The president made an accountable legal determination that this act of Congress is unconstitutional."

Paul Clement, lawyer for GOP House leadership in defense of DOMA: "The House's single most important prerogative, which is to pass legislation and have that legislation, if it's going to be repealed, only be repealed through a process where the House gets to fully participate."

Justice Kennedy: "Suppose that constitutional scholars have grave doubts about the practice of the president signing a bill but saying that he thinks it's unconstitutional — what do you call it, signing statements or something like that? It seems to me that if we adopt your position that that would ratify and confirm and encourage that questionable practice because if the president thinks the law is unconstitutional, he shouldn't sign it, according to some view. And that's a lot like what you're arguing here. It's very troubling."

Deputy U.S. Solicitor General Sri Srinivasan: "But my point is simply that when the president makes a determination that a statute is unconstitutional, it can follow that the Department of Justice won't defend it in litigation."


4. Were members of Congress who voted overwhelmingly for DOMA 17 years ago bigots?

Chief Justice John Roberts: "So that was the view of the 84 senators who voted in favor of it and the president who signed it? They were motivated by animus?'

U.S. Solicitor General Donald Verrilli Jr., arguing for administration in opposition of DOMA: "We quoted ... the Garrett concurrence in our brief, and I think there is a lot of wisdom there, that it may well not have been animus or hostility. It may well have been what Garrett described as the simple want of careful reflection or an instinctive response to a class of people or a group of people who we perceive as alien or other."

Justice Elena Kagan: "So we have a whole series of cases which suggest the following: Which suggest that when Congress targets a group that is not everybody's favorite group in the world, that we look at those cases with some — even if they're not suspect — with some rigor to say, do we really think that Congress was doing this for uniformity reasons, or do we think that Congress' judgment was infected by dislike, by fear, by animus and so forth?

"I guess the question that this statute raises, this statute that does something that's really never been done before, is whether that sends up a pretty good red flag that that's what was going on."


5. Are circumstances surrounding gay marriage efforts changing so quickly that there's no need for the court to get involved?

Chief Justice Roberts: "I suppose the sea change has a lot to do with the political force and effectiveness of people representing, supporting your side of the case?"

Roberta Kaplan, lawyer for Edith Windsor, who is challenging DOMA: "I disagree with that, Mr. Chief Justice. I think the sea change has to do, just as discussed was Bowers and Lawrence, was an understanding that there is no difference — there was no fundamental difference that could justify this kind of categorical discrimination between gay couples and straight couples."

Chief Justice Roberts: "You don't doubt that the lobby supporting the enactment of same-sex marriage laws in different states is politically powerful, do you?"

Chief Justice Roberts: "As far as I can tell, political figures are falling over themselves to endorse your side of the case."

Kaplan: "The fact of the matter is, Mr. Chief Justice, is that no other group in recent history has been subjected to popular referenda to take away rights that have already been given or exclude those rights, the way gay people have."

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