DOMA @ SCOTUS - Oral Arguments

So "Day 2" has arrived and the oral arguments have conluded. It will be a while before I can listen to audio, but some observations from the Wall Street Journal's liveblog on the case:

http://blogs.wsj.com/washwire/2013/03/27/live-blog-supreme-court-weighs-gay-marriage-day-2/

1. A lot of talk early on about standing. Apparently the Court is not happy about the DOJ's split approach of deeming DOMA unconstitutional while continuing to enforce it. They're also skeptical, as they were yesterday in the Prop 8 case, on questions of whether the case should even be before them.

2. The Court even went so far as to bring in a professor from Harvard to argue that the case should be thrown out on the standing issue. That tells me they're seriously considering punting it on a technicality, in which case Windsor would probably 'win', but the ruling would potentially be limited to her case alone. Oddly, the justices are skeptical of Harvard prof's arguments as well.

3. Alito questions whether the House committee (BLAG) can defend the law without the Senate's participation.

4. Repeated expressions of federalism concerns (did the U.S. government intefere with the rights of states by creating a federal definition of marriage?)

5. BLAG lawyer, Paul Clement, argues that DOMA is rational because it requires the federal government to treat all same-sex couples the same, rather than providing federal benefits for those able to legally marry and and nothing for those in states where it's banned. Funny, we don't say that all opposite-sex couples have to be treated the same under marriage law, just the married ones. It's a bizarre argument to claim that providing nothing for all same-sex couples, married or not, is an example of 'equality'.

6.Clement responds to a statement from Kagan, in which he opines that the Court has never struck a law for being improperly founded on expressing moral disapproval. :cough: Lawrence v. Texas :cough:

7.Roberts questions whether the federal goverment could recognize "committed" same-sex couples even in states where they aren't legally recognized. To which Kennedy reiterates his question about federal government stepping on states' rights.

8. Roberts challenges Verilli's claim that the only remaining solid rationale for DOMA is the expression of disapproval by asking whether he thinks all those voting favorably on DOMA were acting out of animus. To which Verilli throws back Bowers v. Hardwick in the court's face - a decision that upheld the unequal criminalization of same-sex relations as an expression of moral disapproval, only to be overturned by the later decision in Lawrence v. Texas.

9. Breyer summaraize DOMA by saying it allowed the federal government to take a hands off approach to let the state's handle the issue while preserving the traditional definition in law for the federal government, but Windsor's lawyer, Roberta Kaplan, replies that it's the other way around - the federal law undermines the policy decisions of states approving same-sex marriage recognition.

10. Clement's rebuttal includes the bizarre example that preserving no recognition preserves militiary readiness; the claim being that military personnel might resist transfers out of a fear of losing federal recognition when they move from a state that has marriage recognition to one that doesn't. Wait...what? If the fed gov recognized marriage, and they had a legal marriage at the state level, the federal benefits wouldn't go away just because they moved from one state to another, right? What the hell is he arguing here? I suggest we have a problem scenario in the real world as it stands today - military personnel may resist transfers because they don't want to lose the only recognition they have - at the state level - by being relocated to a different state that doesn't recognize their marriage. This is almost as bad as Robert's bait & switch yesterday in the Prop 8 case on children and 'harm'.

11. Clement concludes that since it's likely marriage equality will come through the political process anyway, the court needn't act to strike down discriminatory statutes. Seriously? That's their argument?

Draw your own conclusions, of course. Audio should appear at the link below eventually, transcripts we'll have to dig up later.

http://www.supremecourt.gov/oral_arguments/argument_audio.aspx

 

Much ado about nothing... at least that's the way I think it'll turn out. Not gonna be the end all gays hoped it would be.

 

Right - because my marriage = nothing to the likes of you. No surprise there.

FYI - I've never had a lot of hope for these cases providing any kind of nationwide solution. I think at best the court would punt them on technicalities. I dread getting a decision that gives the discrimination a stamp of approval.

 

So I've managed to make my way through the transcript. Some interesting stuff that I may try to bring to the thread later.

For now, predictions: The court will uphold Prop 8, and it will punt the Windsor case by saying that BLAG doesn't have standing, giving us the most minimal of outcomes. I went into this with more hope for DOMA Section 3 being struck, and there might be the votes on the court to do that, but it's clear from the transcript that there is concern that doing so as an equal protection matter at the federal level has ramifications for the states that the justices aren't prepared to put into motion. So if they strike down DOMA Section 3, it will be on a "rational basis plus" level of scrutiny. But I think they're more likely to kick the can down the road and punt this one on the standing technicality.

What that would mean going forward: We'd have to fight case by case at the federal level. That could drag on for years. At the state level, losing Prop 8 would be a huge blow. It would cement the status of gay people as being second, 'other', and worthy targets for discrimination. We would end up having to do what I've said all along - overturn the state amendments one by one and then try to get some kind of legal status state by state. That would take decades, and a lot of $, so I would not say that marriage equality nationwide is inevitable. A loss on Prop 8 would encourage our well-funded opponents to redouble their efforts.

Of course, I hope I'm wrong and that the Court will surprise me. But I'm not holding my breath.

 

Where in Article 4, Section 2 is there any authority for the general government to deny or disparage the privileges and immunities of the citizens in the several States?

 

That's your reply to everything, and it shows a particular lack of knowledge of how the Court has interpreted that clause in the law. It didn't even come up in this or the Prop 8 case. There's no precedent for them to apply it here. Find me some case law that says something different, and we'll talk about it. Otherwise, it's a non-point.

 

I've been married & divorced twice and would be glad to give you either marriage. Trust me, the idea of marriage is much more compelling than reality.

Point is... I don't think the SC should even be hearing this case. If they rule, I plan to bring suit against my parents because I wasn't born taller.

Makes about as much sense.

 

We're living the reality, just without the legal recognition of it. One has to be pretty blinded by prejudices not to see that.

You're statements are the ones not making any sense to sensible people. Troll somewhere else, please.

 

I find the arguments in this video to be very persuasive and rational:
[video=youtube;DWp79jvy9aA]http://www.youtube.com/watch?feature=player_embedded&v=DWp79jvy9aA#![/video]

As for the case, it seems that DOMA may be partially overturned, simply because the liberal justices all seem to be against it and there have been skeptical comments from some of the other justices. I haven't been following Prop. 8 as much, so I don't know. It is a very interesting issue to follow right now.

 

Well, I don't trust you. I thought that was pretty evident. Marriage is linked to federal law in over 1400 instances. It's not just a "tax deduction". It is not all about "warm fuzzies". Get back to me when you have a mature, informed understanding of the law. Until then, do me the favor of not wasting my time.

And we should care about your opinion why, exactly? Just because you have an opinion, that doesn't make it informative, nor does it mean that it adds anything of value to the discussion.

Not a fan of putting everything up to a popular vote everytime someone squawks about something they don't like. I believe in the republican style of government, not direct democracy.

Hopefully the court is unbiased enough to make a ruling based on the law, not popular opinion.

 

I've been single and I've been married and I'm telling you the federal 'mentions' of marriage don't amount to a hill of beans.

God made two of each species... a male and a female. No matter what kinda of laws man makes, that's not gonna change. The Federal govt has no business dabbling in marriage laws in the first place, which makes the SC deciding the decision even more ludicrous.

Sorry, but that's my opinion.

 

But that is not the point. The way you look at God limits your view of marriage but many religions don't see God that way. But the Federal government is involved in marriage, that is a done deal. In the incident of DOMA the only thing DOMA does is to force the Federal government to discriminate against gay people. One argument was being made by the military, an institution that two years ago allowed openly gay members, CANNOT, let me repeat, CANNOT, give the legally married gay spouse the privileges of service people. So if someone is injured in a war, the legally married spouse will not get notification, do not get survivor benefits, and do not get the many many other benefits. So if you don't think the government should get involved you should call for the strike down of DOMA. If you don't you are for discrimination by your government on your federal citizens.

 

If the federal government shouldn't be dabbling in marriage laws, then you should support the repeal of DOMA, since DOMA is an example of the federal government dabbling in marriage laws.

 

Well it's your sorry opinion. And I'm done trying to find a reason to care about your opinion.

 

The standing arguments are very arcane, so I'm not going to throw much in here about that despite the amount of time spent on them in the hearing. Seriously it took them 55 pages to explore the standing issue before getting to the merits of the case.

All quotations in the posts that follow are from the transcript at:

http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-307_jnt1.pdf

As noted in the OP, the court seemed rather unhappy about the administration's mixed message; the feeling was that he should have gone all the way to refusing enforcement of DOMA if he deemed it unconstitutional.

Roberts thrust here is that if both plaintiff and the government as original defender agree with the lower courts rulings, why did the government want the case to be appealed? And is there precedent for it? Seemingly the answer is 'no' to the latter question.

Scalia being Scalia. There's no real point to the statement, other than to belittle.

Kennedy is using this analogy to criticize the decision to declare the law unconstitutional while simultaneously continuing enforcement.

Scalia appears to think that the executive branch shouldn't be able to refuse defense of a law it deems unconstitutional. Srinivasan's answer though is that this is true - there is no assurance to Congress that the executive branch will defend a law it deems unconstitutional. Scalia disagrees with that assessment, but he doesn't get to pursue it.

The basic question seems, can the House authorize a panel like BLAG to intervene if the DOJ won't defend challenges to the law. Whence is this power derived?

Intriguing, but no, according to Clement.

So again, where does the House get the authority to act on its own to defend the law? Clement's answer:

In other words, he's saying that the courts can't simply 'repeal' the law by virtue of the technicality that DOJ won't defend it; that either house of Congress could step in to prevent that.

 

Justice Ginsburg asks Clement "what kind of marriage is this" if on the one hand the state grants a license, but the federal government withholds all the benefits normally provided in recognition of that license.

That one took me by surprise, but it's certainly an intriguing question: Could people wind up being divorced at the state level but not the federal level? Could they marry again at the state level, thus being simultaneously married to two different people because of the federal government not recognizing the divorce ending the first marriage?

Federalism was a recurring theme during oral arguments. The justices expressed considerable concern over the federal government stepping on states' rights.

Clement attempts the argument that the federal government has an interest in uniformity in federal law, as an excuse to justify providing same-sex couples no recognition regardless of what the states do or do not recognize. Justice Sotomayor's response:

Clement counters that they only reason they're treated different is because of the way state law treats them, rather than how federal law treats them.

This is the big hole in Clement's argument being based on uniformity in federal law as an excuse for DOMA. Since states regulate many aspects of marriage, there could be numerous examples where the federal government - as a matter of interest in uniformity alone - could decide to treat some couples as not married regardless of what the state's say in their legitimate role of regulating marriage, and regardless of there being no relevant reason to withhold the rights.

In other words, marriage is an interest belonging to the states, so where does the federal government get the power to create classifications of who is or isn't married?

Furthermore:

Pretty much hammering the point home - what gives the federal government the power to discriminate against a class of people it doesn't like in an interest that doesn't belong to it?

 

Section 2 of DOMA protects states from having to treat another state's legally married same-sex couples as married. But Section 3 of DOMA penalizes states that do recognize same-sex couples as married. So the federal government is discriminating between states that have its favored definition of marriage and those which don't.

And a short bit later:

Again, federalism is at issue. The federal government appears to be interfering in the rights of states to regulate marriage.

 

Kagan later goes on to quote the House Report on DOMA: "Congress decided to reflect an honor of
collective moral judgment and to express moral disapproval of homosexuality."

So, "uniformity" my eye. Quite clearly DOMA is about disapproving of homosexuality.

 

Directed to General Verrilli, representing the government:

Clearly, the justices don't want to have to address the equal protection question. If they're going to strike the challenged section of DOMA, they'd much rather do it based on something else in order to avoid having to acknowledge same-sex couples as a classification created by the law for a suspect purpose.

 

And so we get to another reason the justices don't want to acknowledge an equal protection violation by DOMA - the possibility of such acknowledgment being fatal to the 30 state constitutional amendments banning recognition of same-sex couples' marriages. It seems simply impossible to apply an equal protection argument to DOMA without it also apply to the states' amendments.

Take this in hand with all the questions about federalism and the conundrum becomes clear - the Court doesn't want to be seen as a body of the federal government dictating to the states what their policy must be on an interest that belongs to the states.

 

Chief Justice Roberts has been trying to argue this point but not getting the response he wants. He wants to know if there's a problem with...

It's the flipside of the question of whether the federal government can hold a more restrictive definition of marriage than states recognizing same-sex marriages without violating principles of federalism. Every time he asks it, the attorneys leap to the equal protection argument, avoiding the federalism argument. It's not hard for me to see why that is.

Exactly what problem is created by government having a more expansive definition of marriage that covers both groups of states - those with only opposite-sex marriage, and those with both opposite-sex and same-sex marriage? If government isn't dictating to the opposite-sex-marriage-only states that they have to recognize same-sex marriages, then what's the issue? I can't see one, and apparently neither could the attorneys.

It only seems to be a problem if the federal government's definition is more restrictive, thereby interfering with the interests of states who have a more expansive definition. And remember - it's the states that hold the controlling interest in marriage, so this is about how they're affected. If there's no interference in the interests of a state with a more restrictive definition through the government accepting the more expansive definition, while refraining from imposing anything on the those more restrictive states, then there's no problem to be addressed as I see it. There just seems to be no point to Roberts' pursuit of this. If he had one, it never became clear to me.

Scalia continues to press the issue, and get's this answer from Kaplan:

Is that what Roberts was trying to get at? If so, why didn't he just ask that question?

 

Justice Breyer tries to help Kaplan by restating one of Clement's arguments; that the federal government chose the traditional definition of marriage for interpreting federal law to stay out of the 'revolution' of states breaking new ground in marriage law with the recognition of same-sex couples. Kaplan says she views it as an incorrect argument and Breyer, seeing as Kaplan hasn't picked up on the fact that he's trying to help her out, has to tell her: "I understand you do. I'd like to know the reason."

 

Roberts was trying to get Kaplan to admit that gay people are not politically powerless - one of several guiding points for determining qualification as a suspect class. I say "guiding points" because they aren't absolute requirements that have to be met. Kaplan was having none of it, and rightly so.

The status of being "politically powerless" has never been viewed by the court as having absolutely no political power whatsoever. It has more to do with the degree to which a group is able to influence policy, and 30 state amendments banning same-sex marriage as compared to the few who provide full marriage equality pretty much shows that gay people are indeed "politically powerless" in the sense that the court would normally consider any group to be so. In short, Roberts is trying to pull another fast one.

 

Clement on rebuttal:

Trouble is, the uniform rule that Clement's side is arguing for is one that refuses those benefits in the first place! If the federal government were to recognize the states' same-sex marriages, there would be no loss of federal benefits in this scenario because the recognition of that legal marriage isn't predicated on where a person lives, but on them already having a legally recognized marriage. They don't lose that recognition at the federal level simply because they moved, do they? Instead, we already do have a problem, wherein someone might resist a transfer because of the complete lack of federal protections, and the potential loss of state benefits.

Clement's argument here is just bizarre. Remember, this is DOMA we're talking about. He's saying it's better for them not to have benefits at all so that they won't lose them when they move. What a contortionist!