WASHINGTON—The U.S. Supreme Court cast a skeptical eye on the Defense of Marriage Act Wednesday, but on federalism grounds rather than equal protection. So if the court strikes down the law, it would probably do so because the law overrules states on marriage, rather than because the law discriminates against homosexuals.
The states’ rights arguments that helped advocates of California’s Proposition 8 Tuesday before the high court played against DOMA proponents Wednesday. Section 3 of DOMA defines marriage as between one man and one woman for the purposes of federal benefits. That means that in states that recognize same-sex marriage, those gay married couples wouldn’t be eligible for federal marriage benefits.
Justice Anthony Kennedy, a big believer in states’ rights and the key vote in this case, characterized the federal law as an imposition on states. “We’re [only] helping the states if they do what we want them to do,” he stated.
Paul Clement, defending DOMA on behalf of the U.S. House of Representatives, rebutted that the word “marriage” already exists in more than a thousand federal statutes, and DOMA was simply defining what that word meant. The federal government didn’t need a definition for that word until 1996, when the possibility emerged that a state could legalize same-sex marriage. DOMA means that regardless of state laws, the government treats “the same-sex couple in New York the same as the same-sex couple in Oklahoma,” Clement said.
Despite the teeming crowds with “equality” signs outside, the court didn’t seem particularly moved to characterize DOMA as a discriminatory law. Kennedy, who has written two of the court’s major gay rights rulings, said the court had to consider first whether the law was valid before rushing to the “fundamental question of equal protection.”
Justice Elena Kagan argued the law violated equal protection, based off a House report that said the law was passed as an expression of “moral disapproval of homosexuality.”
Chief Justice John Roberts asked whether the 84 senators who voted for DOMA did so out of “animus” toward homosexuals. Solicitor General Donald Verrilli, one of DOMA’s challengers, said no, but the senators passed the law out of “unthinking discrimination.”
Justice Stephen Breyer said if DOMA counted as discrimination and an equal protection violation, then all states should have to legalize gay marriage.
A characteristic of classes of people who qualify for equal protection is that they are powerless. Roberts questioned whether homosexuals are a powerless class. Roberta Kaplan, representing Edith Windsor, the lesbian challenger in the case against DOMA, said the country has experienced a “sea change” in attitudes toward gay marriage. Roberts suggested that the sea change came about because of the political effectiveness of the gay lobby.
“As far as I can tell political figures are crawling over themselves to endorse your side,” Roberts said. (Even as the arguments concluded Wednesday, Democratic senators who previously opposed same-sex marriage publicly changed their positions.)
“[The sea change] comes from a moral understanding that gay people are no longer different,” said Kaplan.
“Where did that moral understanding come from if not from political effectiveness?” Roberts asked.
Meanwhile, both Justices Samuel Alito Jr. and Sonia Sotomayor questioned whether the federal government should be defining the word “marriage” to begin with. Alito asked if the government could just replace the word “marriage” in all statutes with the word “certified domestic units.”
“What gives the federal government the right to be concerned about the definition of marriage at all?” Sotomayor asked.
But before the justices could truly consider any of these matters, they spent an hour debating dry procedural matters, including whether the individuals in the case have standing. Those tricky questions arose after the U.S. Department of Justice quit defending DOMA and began advocating against it.
The Justice Department switched sides against the law after President Barack Obama and Attorney General Eric Holder announced they deemed DOMA unconstitutional, and the House of Representatives took up defense of the law. But the government has continued to enforce the law even as it argues against it in court. Kennedy said the Justice Department’s court filings gave him “intellectual whiplash.”
With the procedural trickiness, the justices have several options for resolving the case.
They will likely issue a ruling in both marriage cases in late June.