The Supreme Court of the United States (SCOTUS) heard oral arguments Wednesday in regards to a provision in The Defense of Marriage Act (DOMA) which defines marriage as between a man and woman on the federal level.
Plaintiff Edie Windsor brought suit against the federal government after the Internal Revenue Service, citing DOMA, denied her a refund for $363,000 in federal estate taxes she paid following the death of her partner of 40 years and spouse of two years, Thea Spyer.
Winsor argued DOMA violated her Fifth Amendment right to equal protection since she would have been eligible for an estate tax exemption had Spyer been a man.
The first 50 minutes of argument examined two propositions: whether the Court lacked authority to hear the case because the United States government already concurred with the lower court that DOMA is unconstitutional; and whether the Bipartisan Legal Advisory Group, representing House Republicans, had standing (the legal right) to be in the case.
However, unlike Proposition 8 yesterday, it seems likely the Court will listen to the merit challenges of DOMA.
So far, five justices appear ready to strike down DOMA, but each on different grounds. Breyer, Sotomayor, Gingsberg and Kagan, considered the liberal justices, questioned the constitutionality of the law and focused on why the federal government would define marriage as between a man and woman in the first place.
Justice Kagan pointed out a 1996 House Report which said, “Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality,” suggesting DOMA had discriminatory motivations which ran counter to the defense’s argument that Congress only enacted the law to provide a uniform definition of marriage.
Justice Kennedy was also highly skeptical, but focused on the limits of the federal government rather than the equal protection principle. He warned that DOMA was at “real risk with running into conflict with what has always been the essence of state power,” which is to define marriage. Later on, he communicated to the defense that the question at hand is “whether the federal government has the authority to regulate marriages.”
The other four Justices, Chief Justice Roberts, Clarence, Alito, and Scalia did not appear as sympathetic to, or indicate interests in, striking down DOMA.
Chief Justice Roberts scrutinized Windsor’s representation, lawyer Roberta Kaplan’s comments about a “sea change” in attitudes towards gays and lesbians as it relates to strict scrutiny, the most stringent standard of judicial review used by the Court to determine if the government interest is against constitutional right or principle.
Roberts asked Kaplan whether there is a “politically powerful” lobby “supporting the enactment of same-sex marriage in different states.”
“As far as I can tell, political figures are falling all over themselves to endorse your side of the case,” Roberts said.
Not receiving strict scrutiny undermines Kaplan’s argument that gays and lesbians are a group that needs special protection, and laws such as DOMA should be subject to a close review. Moreover, denial of strict scrutiny supports House Republican leaders’ argument that issues relating to same-sex marriage are best decided by the political process, not the courts.
Currently, it appears that Justice Anthony Kennedy will be the deciding vote in DOMA, but will have a different justification than the four liberal judges.
The best outcome for marriage equality supporters would be for the Court to strike down DOMA because it discriminates against gays and lesbians. If DOMA is ruled unconstitutional because marriage is traditionally a state’s right, then there will be little impact beyond this case. Ultimately, the path to full marriage equality is recognition on both the state and federal level.