In its second day of hearings on gay marriage, the U.S. Supreme Court clashed over the power of the federal government to set a definition for marriage and whether the federal government could ignore state decisions to legalize same-sex nuptials.
At issue is the federal Defense of Marriage Act (DOMA), which prohibits the federal government from acknowledging same-sex marriages in states that have legalized them or providing any federal benefits to spouses of those marriages. Nine states plus the District of Columbia have legalized gay marriage.
MAP: Which states allow same-sex marriage and civil unions?
As expected, the court’s four conservative justices and four liberal justices appeared split along ideological lines. The conservatives seemed skeptical that the federal government should be forced to recognize same-sex marriages, while the liberals implied that it would be unconstitutional for the federal government not to.
Justice Anthony Kennedy, who's widely viewed as the swing vote in both gay marriage cases, however, grilled the attorney representing DOMA’s supporters, Paul Clement, much harder than Solicitor General Donald Verrilli, representing the Obama administration, and Roberta Kaplan, representing the private opponents of the law. After Wednesday's arguments, many observers are predicting that he will vote to strike down the law.
Clement argued that DOMA protected states that have chosen to stick with the traditional definition of marriage. But Kennedy didn't see the logic in that argument.
“Your argument [is that] Congress wanted to help the states,” Kennedy told Clement. “But Congress doesn't help the states which have come to the conclusion that gay marriage is lawful. So that’s inconsistent.”
The issue of states' rights
Kennedy suggested that DOMA, by limiting the rights of gay couples that are legally married under state law, infringed on states' rights.
“Your statute applies also to states where the voters have decided” to legalize same-sex marriage, so the court has to determine “whether or not the federal government, under our federalism scheme, has the authority to regulate marriage,” he said.
The liberal justices charged that DOMA reached beyond the usual power of the federal government, which has typically deferred to state definitions of marriage. But Clement argued that the federal government has the authority to set a uniform standard under federal law for who will receive federal benefits. He stressed that this was limited to federal law, and same-sex couples are still legally married in their states and entitled to any benefits their individual states may offer. But Kennedy noted that there are 1,100 federal statutes that relate to marriage and therefore restrict same-sex married couples’ rights under federal law.
Justice Ruth Bader Ginsburg summarized the liberals’ skepticism along the same lines in one exchange.
“[Federal benefits] touch every aspect of life. Your partner is sick. Social Security. I mean, it’s pervasive,” she said. “It’s not as though there is this little federal sphere.” She added that DOMA theoretically creates two kinds of marriage: full marriage for opposite-sex couples and “skim-milk marriage” for same-sex couples that are denied federal benefits.
Conservative Chief Justice John Roberts turned the state rights question around when opponents of DOMA took the podium. He repeatedly asked Verrilli and Kaplan to explain whether Congress would be infringing on states' rights if it passed a law recognizing same-sex marriage when more than 30 states have outlawed it.
“You don’t think [that] would raise a federalism problem?” he asked.
The issue of jurisdiction
Just like in Tuesday’s hearings on California’s ban on gay marriage, the court first had to wade through tricky jurisdictional issues. The first hour of Wednesday’s arguments focused on whether there was a dispute for the court to consider at all. Vicki Jackson, a court-appointed attorney, said that there's no case here because the Obama administration -- which would normally defend a federal law in court -- agreed with DOMA’s opponents and the lower courts’ decision to overturn the law, so there is no grievance left to be decided, she said.
But the administration’s lawyer for the jurisdiction issue, Sri Srinvasan, countered that because the federal government had not yet paid Windsor’s tax refund, there was still an active case for the court to resolve. Clement asserted that even if the Obama administration couldn't argue the case, Congress could still defend DOMA because it had passed the law in the first place.
If the court decides neither the Obama administration nor the U.S. representatives have standing, it can dismiss the case without making a substantive ruling. If the court dismisses both the DOMA and California cases -- as some have already predicted -- the nation’s highest court could avoid making any kind of meaningful decision about the legality of same-sex marriage.
If the court decides one or both parties do have a case, there are two likely outcomes.
One, the court could rule that DOMA is unconstitutional, thus requiring the federal government to recognize legal same-sex marriages and provide spouses with federal benefits. However, it would likely not affect the more than 30 states that have banned same-sex marriage.
Two, the court could find DOMA constitutional, thus letting the federal government continue to ignore same-sex marriages for tax and other purposes. That ruling would not, however, impact same-sex marriages in states where they're legal.
A ruling is expected in June, near the end of the court’s current term.
The case was brought forth by a New York woman, Edith Schlain Windsor, who married another woman in Canada and was denied the federal tax exemption for spouses on the inheritance after her partner died. The Internal Revenue Service cited DOMA in denying her claim, and Windsor sued.
The U.S. District Court and the Second Circuit Court of Appeals both ruled in her favor and found DOMA unconstitutional because it violates the 14th Amendement's Equal Protection Clause, which ensures that certain classes of people are not discriminated against.
The hearing's official transcript is below.