In the second day of back-to-back marriage hearings at the US Supreme Court, the justices heard arguments yesterday in United States v Windsor. Edie Windsor married her long-time partner in Ontario, after which the two of them moved to New York. At the time, New York did not permit same-sex marriages, but they did give full recognition to same-sex marriages lawfully performed elsewhere. When Windsor’s wife died, the federal government sent her a tax bill for over $360,000 because the Defense of Marriage Act (DOMA) prevents the federal government from recognizing same-sex marriages. Had Ms. Windsor’s marriage been recognized, her tax bill would have been zero.

Yesterday’s hearing was divided into two parts. The first, much like the Prop 8 hearing, was devoted to a somewhat dull but important procedural question: the issue of standing. Because the Obama Administration was supporting Ms. Windsor’s case, there was a question of whether there was anybody who was actually able to bring the case to the Supreme Court. In simple terms, courts resolve legal disputes. If both sides agree on the law, then there’s no dispute. No dispute, nothing for the courts to do. Republicans from the US House of Representatives have also tried to step in to defend DOMA, but there were also some tough questions about whether or not they had a right to be in court. With that said, a majority of the justices seemed willing (or at least more willing than they did with the Prop 8 case), to rule that the case was properly before them.


This case was a bit odd in terms of the way it was argued. My opinion, and apparently the opinion of a number of the justices, has always been that DOMA violates the Tenth Amendment of the US Constitution. What the Tenth Amendment says, in a nutshell, is that any power that isn’t specifically given to the federal government instead belongs either to the individual states or to the people. Since marriage isn’t entrusted to the federal government, it follows that its regulation belongs to the states.

That doesn’t necessarily mean that the federal government has no role to play when it comes to marriage, but it does mean (or it ought to mean) that the federal government cannot substantially interfere with the right of the states to regulate marriage as they see fit. As it happens, the federal government isn’t just responsible for things like joint tax returns or estate and inheritance taxes. They also have power over next of kin notification when someone dies, over hospital visitation rights, spousal immigration rights, survivor benefits, and the list goes on and on. In fact, it’s arguable that when you think about the rights that come with marriage, virtually all of the big ones come from the federal government. So, when the federal government says, through a law like DOMA, that they are going to withhold all of those rights from legally married same-sex couples, they are seriously interfering the rights of every state that has chosen marriage equality. In fact, it’s been argued that a lot of state lawmakers who might otherwise stick their necks out to support marriage equality see no point in doing so when it won’t bring with it the bulk of the benefits that are viewed to be most important.

Justice Ginsburg made this very point early in the arguments when she suggested that the federal government had effective created “whole marriage, and then this sort of skim-milk coverage.” What Justice Ginsburg was getting at in a pretty clever way was that when you get rid of the federal benefits of marriage, you’re left with something thin and tasteless, bearing little practical resemblance to the real thing. At least six justices seemed to be on board with this reasoning, including Chief Justice Roberts, who at times seemed frustrated when the lawyers kept trying to dodge this issue.

For most of the arguments, the lawyers argued the Fourteenth Amendment. I still side with Justice Kennedy, who suggested that the Fourteenth Amendment only applies if the federal government has the power to enact the law to begin with (Tenth Amendment), at which point you can then ask if they had a decent reason for passing it (Fourteenth Amendment). I’m going to assume that all these federal government lawyers didn’t want to argue the Tenth Amendment because their bosses don’t want them to argue anything that would result in them giving up power and handing it to someone else.

However, for the sake of some analysis about what the lawyers decided to argue, here’s how the Fourteenth Amendment argument works. The Fourteenth Amendment has within it something called the Equal Protection Clause. That section basically says that the government has to treat similarly situated people in the same way, and if they don’t they’d better have a good reason. How good a reason they have to have depends on the group they are discriminating against. The more likely it is that there can never be a good reason to discriminate against a group (think race, sex, etc), the better the reason for discriminating has to be.

The folks defending DOMA advanced two basic reasons for the discrimination in DOMA: uniformity and neutrality. The crux of the first argument is that the federal government has an interest in ensuring that marriage is treated and defined the same at the federal level across the entire country. That way if people move to a state where their marriage isn’t recognized, they don’t lose their benefits because they didn’t have them in the first place. The problem with that argument, of course is that if you want to be harsh, you can say that as long as people know that they stand to lose their benefits, then there’s no injustice. It’s just one of the many factors that people weigh every single time they make a decision to move. The other option is that the federal government could just as easily recognize all same-sex unions and dodge the problem that way. I would argue that there’s no Tenth Amendment issue here because this doesn’t restrict or inhibit the ability of the states to regulate marriage.

It seems like the justices weren’t buying this first argument. Justice Kagan pointed out repeatedly that the general history of the federal government had been to accept each state’s definition, and that where the federal government had gone with a different definition, it had done so to broaden benefits, not restrict them.

Moving on to the neutrality argument, the main thrust here was that the federal government was trying to stay out of the argument by passing DOMA. Justices Kennedy, Ginsburg, and Kagan all went to town on this one, suggesting that the argument was inconsistent, nonsensical, or worse. Justice Kennedy, who tends to cast the deciding vote in contentious cases, went so far as to suggest that DOMA was actually logically inconsistent, and was also harmful to children.

Perhaps the biggest moment was when Justice Elena Kagan interrupted DOMA lawyer Paul Clement to deliver the Supreme Court equivalent of a smackdown. Clement was in the midst of arguing that DOMA was nothing more than some congressional housekeeping, an effort just to clarify what everyone already knew to be true. Justice Kagan interrupted Clement, and reading from the report of the House of Representatives that accompanied the passage of DOMA quoted from it that “Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.” Audio of the generally calm courtroom picked up a great number of gasps.

Clement tried to dodge the issue by suggesting that even if a bunch of lawmakers said that was their actual reason, as long as there was some other, secret reason that nobody mentioned at the time but that the court could dream up now, that should be sufficient to uphold DOMA.

In the end, it looks as though there are probably at least 6 votes on the Supreme Court to strike down DOMA and give the LGBT community a major victory. It’s hard to say what the precise grounds will be. No doubt the legal rationale, whether it ends up being a Tenth Amendment argument, a Fourteenth Amendment argument, or some combination of the two, will ultimately be the subject of a great deal of behind-the-scenes back and forth between the justices as they try to cobble together a majority opinion. What is clear, however, is that unlike Tuesday’s Prop 8 hearing, the Supreme Court appears ready, and even eager, to act here. In doing so, they will bring to an end a dark chapter in US history that has lasted for nearly 17 years.

Submitted By: Sameer Ismail
Sameer Ismail has been a political consultant for a number of years. He holds a degree in Political Science from the University of British Columbia, and is currently completing a degree in Law.

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