DOMA on Wobbly Ground

March 27, 2013

by Jeremy Leaming

As in Hollingsworth v. Perry, the Proposition 8 case, the U.S. Supreme Court justices in today’s consideration of the so-called Defense of Marriage Act dwelled on jurisdictional questions, before discussing the core constitutional concerns.

But a reading of the oral argument transcript in U.S. v. Windsor suggests a majority of justices may be ready to invalidate DOMA, but on narrow grounds, and likely not with a declaration that laws classifying lesbians and gay men for unequal treatment should be subjected to heightened scrutiny. Instead if the justices strike DOMA – and SCOTUSblog’s Lyle Denniston suggests that may be what happens – it likely will be on federalism grounds – that is the law encroaches on the states’ rights to regulate marriage.  

ACS President Caroline Fredrickson in a statement following oral argument said, “The federal government has a duty to protect Constitutional principles and values. The so-called Defense of Marriage Act, however, is an egregious affront to the Constitution’s guarantee of equal protection under the law. DOMA walls off lesbians and gay men from more than 1,000 federal government benefits, protections and rights. There is no rational reason for this law. The Supreme Court should reject it and establish a more rigorous test for similar laws.”

Before moving to the core of the case – a constitutional challenge to DOMA – several of the justices pelted lawyers with questions about whether the case should even be before the justices. (The Obama administration has stopped defending DOMA, calling it unconstitutional. But when the U.S. Court of Appeals for the Second Circuit ruled last year that DOMA’s cramped definition of marriage was unconstitutional, the administration appealed the opinion to the Supreme Court, where it argued against the law.) During oral argument, Chief Justice John Roberts Jr. took a shot at the administration’s handling of the case, saying that if the president thinks the law is unconstitutional then why doesn’t he “have the courage of his convictions" and not enforce the law, instead of saying, "'Oh, we'll wait till the Supreme Court tells us we have no choice.'"

After getting through the mind-numbing back-and-forth on standing questions, the justices turned to the constitutionality of DOMA, and it appeared that a majority was leaning toward killing it. Lawyers representing Edith S. Windsor the woman challenging DOMA, argued in their merits brief before the Supreme Court that laws like DOMA, which target lesbians and gay men for unequal treatment when challenged should be subjected to a heightened scrutiny. “This Court should apply heightened scrutiny to DOMA because it discriminates on the basis of sexual orientation,” the brief states. “Under heightened scrutiny, the federal government must at the very least show that the classification is ‘substantially related to the achievement of [important government objectives].’”

 

Several of the justices’ questions, however, focused more on an encroachment by the federal government on the states’ abilities to regulate marriage, which could provide them an escape from addressing whether laws targeting lesbians and gay men for unequal treatment should be subjected to a more rigorous legal test. (In other words, when such laws are challenged as constitutional violations, the government would have to show that the laws are substantially related to advancing an important governmental interest, which is a really difficult test to meet.)

In an exchange with the attorney defending DOMA, Paul Clement, Justice Anthony Kennedy said, “The question is whether or not the federal government, under our federalism scheme, has the authority to regulate marriage.”

U.S. Solicitor General Donald Verrilli tried to argue that DOMA’s definition of marriage was a violation of the Constitution’s equal protection guarantee, saying at one point that DOMA imposes an “exclusion from federal benefits on a class that has undeniably been subject to a history of terrible discrimination ....” But Roberts and Kennedy pushed that argument aside to focus on “federalism concerns.”

Kennedy interjected telling Verrilli, “you are insisting that we get to a very fundamental question about equal protection, but we don’t do that unless we assume the law is valid otherwise to begin with. And we are asking is it valid otherwise. What is the federal interest in enacting this statute and is it a valid federal interest, assuming before we get to the equal protection analysis?”

When Roberta Kaplan, representing Windsor’s interests, was questioned she also found the justices honing in on the federalism question. Kaplan first tried explaining why DOMA could not even pass the lowest level of constitutional scrutiny – a rationality review. But Roberts said she was following Verrilli’s lead, “returning to the Equal Protection Clause every time I ask a federalism question.”

There were some hints, even from Kennedy, that the federalism and equal protection concerns are intertwined. It is obviously possible that a majority could decide that not only does DOMA violated the high court’s federalism regime, but also articulate a clearer test for handling laws that discriminate against the LGBT community.

The abundant arguments for incremental moves on marriage equality are as lame as they are offensive. The love that committed lesbian and gay couples share should be celebrated, not attacked as inferior or harmful to children or the institution of marriage. The Supreme Court should be bolder than simply stating DOMA upends federalism, it should declare that laws denigrating relationships of gay couples are constitutionally suspect.