There's quite a bit to digest in the transcript (pdf) of today's Supreme Court oral arguments on the Defense of Marriage Act, but one of the angles that jumped out at me was the discussion of the intent in the law when it was approved in 1996.
Justice Elena Kagan, for example, noted that Congress passed a law targeting a specific group. Hoping to knock down the right's argument that DOMA was about brining uniformity to national marriage laws, Kagan asked, "Do we really think that Congress was doing this for uniformity reasons, or do we think that Congress's judgment was infected by dislike, by fear, by animus" of LGBT Americans?
I'd hoped this was obvious, but Chief Justice John Roberts seemed quite troubled by the very idea that the Defense of Marriage Act had anything to do with anti-gay bigotry. He asked at one point:
"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?"
Later, questioning another attorney, Roberts said it again.
"So 84 senators - it's the same question I asked before -- 84 senators based their vote on moral disapproval of gay people?"
I don't understand what Justice Roberts doesn't understand. Does he not remember 1996? Does he not remember the election-year culture-war debate?
There were, at the time, two groups of people who supported DOMA: (1) those who voted for it because they don't like gay people; and (2) those who voted for it because they hoped to get re-elected by Americans who don't like gay people.
Some were motivated by bigotry and some were driven by cravenness, but Roberts need not be deliberately obtuse about how and why the Defense of Marriage became federal law.
Kagan herself tried to make this clear, reading from the House Report on DOMA: "Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality."
In one of my favorite lines in the transcript, Paul Clement, the attorney hired by House Republicans to defend DOMA, responded to Kagan:
"Does the House Report say that? Of course, the House Report says that. And if that's enough to invalidate the statute, then you should invalidate the statute. "
"Of course, the House Report says that."
Does anyone really see the need to pretend DOMA wasn't about anti-gay discrimination?
I was struck by some of the examples included in one of the briefs (pdf) filed with the Supreme Court against DOMA, which explained, "The only asserted interest actually advanced by DOMA's unprecedented expansion of federal power is expressing moral disapproval of homosexuality and same-sex relationships."
It included some interesting quotes from the lawmakers who championed DOMA at the time about why they backed the proposal:
Individual congressional proponents of DOMA expressed their disapproval of homosexuality and the gay-rights movement in starker terms. For example, then-Representative (now Senator) Tom Coburn asserted that his constituents believe "homosexuality is immoral, that it is based on perversion, that it is based on lust." 142 Cong. Rec. H7444 (daily ed.
July 11, 1996). Representative David Funderburk asserted: "Homosexuality has been discouraged in all cultures because it is inherently wrong and harmful to individuals, families, and societies. The only reason it has been able to gain such prominence in America today is the near blackout on information about homosexual behavior itself." 142 Cong. Rec. H7487 (daily ed. July 12, 1996).
Representative Lamar Smith opined that "[s]ame-sex 'marriages' . . . legitimize unnatural and immoral behavior." Id. at H7494. Representative Henry Hyde, while disclaiming mean-spiritedness or bigotry, asserted that "[t]he homosexual movement has been very successful in intimidating the psychiatric profession." Id. at H7501.
There's not much in the way of ambiguity here, whether John Roberts cares to admit it or not.
After yesterday's Supreme Court oral arguments on marriage rights and California's Prop 8, court watchers and those on hand for the proceedings seemed reluctant to predict the outcome. It's not just that speculation based solely on oral arguments is inherently risky, but also that real uncertainty hangs over the case.
That seems far less true 24 hours later. NBC's Pete Williams told viewers this afternoon, "Again with the caveat, it's always risky to predict, it does seem that there are at least five votes on the Supreme Court to strike down the Defense of Marriage Act." Jeffrey Toobin added, "DOMA is in trouble."
The New York Times report noted that Justice Kennedy "joined the four liberals in posing skeptical questions."
"The question is whether or not the federal government under a federalism system has the authority to regulate marriage," Justice Kennedy said during oral arguments, suggesting that the question should be left to the states. He disagreed with the contention that the federal law simply created a single definition for federal purposes, noting that same-sex couples are not treated the same as other married couples. "It's not really uniformity," he said.
Justice Kennedy's point echoed one made by his more liberal colleagues. Justice Ruth Bader Ginsburg said the federal law effectively created a two-tiered system of marriage. "There are two kinds of marriage," she said. "Full marriage and the skim-milk marriage."
Indeed, the center-left justices made no effort to hide their DOMA skepticism.
"You're treating married couples differently," said Sotomayor.
Kagan suggested that "Congress' judgment" when passing the law in 1996 "was infected with animus, with fear, with dislike."
Breyer said he "can't imagine" what the rational basis would be for denying benefits to married gay couples under federal law.
Ginsburg said recognition of marriage "affects every area of life," mentioning hospital visits to sick partners and Social Security retirement benefits as examples. "It's pervasive."
The only question remaining is whether Kennedy will join them, and by all accounts, he showed no sympathy for DOMA today.
Because marriage rights are being considered at the Supreme Court on successive days, it's tempting to think of this week as a sort of package deal, but there are two distinct cases being heard. Yesterday, of course, was a challenge to California's Proposition 8, which in theory could lead to a ruling with sweeping consequences for marriage rights nationwide.
Today, it's the Defense of Marriage Act, or DOMA, before the justices. More specifically, the high court will consider "whether married same-sex couples are entitled to federal benefits."
The 1996 law defines marriage as the union of a man and a woman for purposes of more than 1,000 federal laws and programs, and it thus excludes married same-sex couples from benefits to which their opposite-sex counterparts are entitled. (Another part of the law, not before the court, says that states need not recognize same-sex marriages from other states.)
Nine states and the District of Columbia allow same-sex marriage, and about 18,000 same-sex couples married in California before voters there overturned a State Supreme Court decision that had established a right to such marriages.
If the United States Supreme Court strikes down the challenged part of the 1996 law, married same-sex couples in those places would start to receive federal benefits. But such a decision would not require any state that does not allow same-sex marriage to permit it.
Obviously, this matters a great deal to the families affected by DOMA, but this case, United States v. Windsor lacks the capacity to fundamentally alter the legal landscape on marriage the way the Prop 8 case does.
That's not to say it's unimportant. Indeed, this case involves Edith Windsor, who married her wife Thea Clara Spyer in Canada in 2007, but was widowed two years later when Spyer died in 2009. Windsor, naturally, inherited her spouse's property.
But because of DOMA, the Internal Revenue Service hit Windsor with an enormous tax bill. Opposite-sex married couples wouldn't have to worry about this penalty after one spouse dies, but under the Defense of Marriage Act, the IRS has no choice.
Two federal appeals courts have said DOMA is unconstitutional.
The justices have a few options on how to deal with the case, and Sahil Kapur sketched out the possible outcomes.
First, the Court could uphold DOMA by determining that the federal government has a legitimate interest in treating straight and gay couples differently. This would continue the status quo unless and until Congress repeals the law.
Second, the Court could strike down DOMA upon deciding that married same-sex couples are entitled to the same treatment as married opposite-sex couples. That would provide tax and retirement benefits to gay and lesbian couples and let Americans sponsor a gay partner from another country for legal permanent residency.
Third, the Court could conclude that the case lacks standing and send it back to the lower courts for a do-over. The case is unique in that the White House has refused to defend a federal law, leaving the task to House Republicans. If a majority of justices decide that the House majority is not a proper party to defend this, the Court could punt the decision.
When arguments begin in a couple of hours, attention will once again focus on Justice Anthony Kennedy, who will likely be the swing vote.
A decision isn't expected until June.
When it comes to political figures who've evolved on gay rights since serving in public office, few have traveled quite as far as former President Bill Clinton. It was, after all, the former Democratic president who signed the Defense of Marriage Act in 1996, and even bragged about it during his re-election bid.
But today, Clinton comes full circle, writing a Washington Post op-ed, urging the U.S. Supreme Court to undo the mistake he made in his first term.
In 1996, I signed the Defense of Marriage Act. Although that was only 17 years ago, it was a very different time. In no state in the union was same-sex marriage recognized, much less available as a legal right, but some were moving in that direction. Washington, as a result, was swirling with all manner of possible responses, some quite draconian. As a bipartisan group of former senators stated in their March 1 amicus brief to the Supreme Court, many supporters of the bill known as DOMA believed that its passage "would defuse a movement to enact a constitutional amendment banning gay marriage, which would have ended the debate for a generation or more." It was under these circumstances that DOMA came to my desk, opposed by only 81 of the 535 members of Congress.
On March 27, DOMA will come before the Supreme Court, and the justices must decide whether it is consistent with the principles of a nation that honors freedom, equality and justice above all, and is therefore constitutional. As the president who signed the act into law, I have come to believe that DOMA is contrary to those principles and, in fact, incompatible with our Constitution.
Supreme Court arguments are set for March 27. A ruling is expected by the summer.
Paul Clement at the U.S. Supreme Court
When we last heard from Paul Clement, he was very nearly convincing the U.S. Supreme Court to destroy the entirety of the Affordable Care Act. What's he up to now? Clement has been hired by House Republicans to defend the Defense of Marriage Act.
Marriage should be limited to unions of a man and a woman because they alone can "produce unplanned and unintended offspring," opponents of gay marriage have told the Supreme Court.
By contrast, when same-sex couples decide to have children, "substantial advance planning is required," said Paul D. Clement, a lawyer for House Republicans.
This unusual defense of traditional marriage was set out last week in a pair of opening legal briefs in the two gay marriage cases to be decided by the Supreme Court this spring.
I admittedly have not yet read Clement's full brief, so there may be a more compelling aspect to this, but the argument seems to be a fairly desperate attempt to find a legitimate difference between straight couples and gay couples -- and this is the best they could come up with. Straight couples can suddenly find themselves parents-to-be, and as a result, the state has an interest in providing them with the ability to legally marry. Same-sex couples, meanwhile, need to "plan" to have kids, lessening the state's interest.
This doesn't seem like an especially compelling argument, but that's not what bothers me. What's irritating, rather, is that you and I are paying for Clement to make this argument.
It appears the Defense of Marriage Act's days are numbered. Two separate federal appeals courts have already struck down the discriminatory law as unconstitutional, and the Obama administration declared two years ago that it not only rejects DOMA, it will also no longer defend it against ongoing legal challenges.
And yet, as Andrew Rosenthal noted, congressional Republicans don't object to "throwing away money" on a pointless DOMA defense.
The 1996 law prohibits federal recognition of marriages between people of the same sex. It was signed -- to his shame -- by President Bill Clinton, and for years the government defended DOMA in court against lawsuits. But in 2011 President Obama instructed the Justice Department to relent -- after Justice concluded that the law was not constitutional.
Cue the budget-conscious Republicans on Capitol Hill, who authorized the spending of up to $2.75 million in public funds to hire lawyers to defend DOMA on their behalf. Apparently, that was not a big enough check, so on Jan. 4, the House Republicans raised the fee ceiling to $3 million.
Note, House Minority Leader Nancy Pelosi (D-Calif.) and House Minority Whip Steny Hoyer (D-Md.) were not consulted before House GOP leaders signed the agreement with the lawyers and did not agree to the additional spending.
In a letter delivered yesterday to House Speaker John Boehner (R-Ohio), the Democratic leaders wrote, "This clandestine commitment of taxpayer funds is highly irregular and objectionable, and it must end now." They added, "From the start, the Republican-led campaign to defend DOMA has been a practice in futility and a waste of Americans' hard-earned tax dollars."
I have a strong hunch Boehner won't care about the Democratic objections, but the next time you hear the Speaker complain that the United States is "broke" -- a favorite Boehner talking point -- remember that he has no qualms about spending 3 million of our dollars on a legal defense of a doomed, discriminatory law.
2nd Circuit Chief Judge Dennis Jacobs
A federal appeals court in Manhattan has become the second in the nation to strike down the Defense of Marriage Act as unconstitutional.
The 2nd U.S. Circuit Court of Appeals issued its ruling Thursday. The decision upholds a lower court judge who ruled that the 1996 law that defines marriage as involving a man and a woman was unconstitutional. The three-judge panel says the law violates equal protection.
The entire ruling is online here (pdf).
There's a particular interest in the judges issuing these ruling, in large part because their ideology would seem to point in a less progressive direction. At the 1st Circuit, for example, the decision was written by Judge Mike Boudin, a traditional conservative appointed by George H.W. Bush, who was the deputy assistant Attorney General in the Reagan administration.
At the 2nd Circuit, the ruling was written by Chief Judge Dennis Jacobs, widely seen as a very conservative jurist. Ian Millhiser, noting today's ruling, added, "Jacobs is not simply saying that DOMA imposes unique and unconstitutional burdens on gay couples, he is saying that any attempt by government to discriminate against gay people must have an 'exceedingly persuasive' justification."
It is widely assumed that the matter will be ultimately be resolved by the U.S. Supreme Court. For now, however, it's another legal victory for proponents of marriage equality.
Appeals Court Judge Mike Boudin.
Though the matter won't be fully resolved until an inevitable Supreme Court case, for now, a federal appeals court this morning ruled that the Defense of Marriage Act is unconstitutional.
The 1st U.S. Circuit Court of Appeals in Boston issued the ruling in a unanimous, 3-0 decision. Of particular interest is the fact that two of the appeals court judges are Republican appointees -- and the decision was written by Judge Mike Boudin, a traditional conservative appointed by George H.W. Bush, who was the deputy assistant Attorney General in the Reagan administration.
From today's decision:
To conclude, many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today. One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage. Under current Supreme Court authority, Congress' denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.
The full ruling is online here. The DOMA decision will be appealed to the U.S. Supreme Court, which is widely expected to hear the case.