Who Won The Argument? II


The arguments today (pdf) were, for the first fifty minutes, way above my pay-grade, but helpfully elucidated below. But the question of the relationship between the federal government and state governments in the definition of civil marriage is a vital one. Can these two be separated? Which one defers to the other? And why?

The core argument in defense of DOMA is that the federal government needs uniformity. Where over a thousand federal laws affect civil marriage, an American citizen needs some consistency across the states. And in 1996, as Hawaii was considering marriage equality for the first time, Mr Clement argues that this was uppermost in the minds of DOMA supporters:

MR CLEMENT: Congress in 1996 at that point says, the States are about to experiment with changing this, but the one thing we know is all these Federal statutes were passed with the traditional definition in mind. And if rational basis is the test, it has to be rational for Congress then to say, well, we are going to reaffirm what this word has always meant for purposes of Federal law … when the Federal Government gets involved in the issue of marriage, it has a particularly acute interest in uniform treatment of people across State lines.

I’m sure that was exactly what Dick Morris was concerned about, aren’t you? But Justice Breyer, it seems to me, has a pretty good response:

JUSTICE BREYER: You would say it would be the same thing if the State passed a law — Congress passes a law which says, well, there’s some States -­ they all used to require 18 as the age of consent. Now, a lot of them have gone to 17. So if you’re 17 when you get married, then no tax deduction, no medical, no nothing.

And yet the Feds have no problem just accepting this lack of uniformity – and accepted it in inter-racial marriage for decades, merely deferring to the states. To put it more bluntly:

JUSTICE SOTOMAYOR: But what gives the Federal Government the right to be concerned at all at what the definition of marriage is? Sort of going in a circle. You’re saying — you’re saying, we can create this special category — men and women — because the States have an interest in traditional marriage that they’re trying to protect. How do you get the Federal Government to have the right to create categories of that type based on an interest that’s not there, but based on an interest that belongs to the States?

MR. CLEMENT: Well, at least two — two responses to that, Justice Sotomayor. First is that one interest that supports the Federal Government’s definition of this term is whatever Federal interest justifies the underlying statute in which it appears. So, in every one of these statutes that affected, by assumption, there’s some Article I Section 8 authority -­

JUSTICE SOTOMAYOR: So they can create a class they don’t like — here, homosexuals — or a class that they consider is suspect in the marriage category, and they can create that class and decide benefits on that basis when they themselves have no interest in the actual institution of marriage as married. The states control that.

Indeed they do. But it’s Kagan who scores the winning goal on this question, it seems to me:

JUSTICE KAGAN: Mr. Clement, for the most part and historically, the only uniformity that the Federal Government has pursued is that it’s uniformly recognized the marriages that are recognized by the State. So, this was a real difference in the uniformity that the Federal Government was pursuing. And it suggests that maybe something — maybe Congress had something different in mind than uniformity.

So we have a whole series of cases which suggest the following: Which suggest that when Congress targets a group that is not everybody’s favorite group in the world, that we look at those cases with some -­ even if they’re not suspect — with some rigor to say, 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, and so forth? … What happened in 1996 — and I’m going to quote from the House Report here — is that “Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.” Is that what happened in 1996?

MR. CLEMENT: 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. But that has never been your approach, especially under rational basis or even rational basis-plus, if that is what you are suggesting.

Busted. The language of the House Report declares that DOMA was explicitly about expressing moral disapproval. But deploying such moral disapproval toward homosexuals was rendered illegitimate by Lawrence vs Texas, as expressed by Scalia’s spluttering, prescient dissent. It seems to me that Kennedy is going to have a hard time repudiating his previous ruling.

But then comes an interesting question – about federal institutions or federal officials or servicemembers being treated differently from state to state:

JUSTICE ALITO: Can I take you back to the example that you began with, where a member of the military is injured. So let’s say three soldiers are injured and they are all in same-sex relationships, and in each instance the other partner in this relationship wants to visit the soldier in a hospital.

First is a spouse in a State that allows same-sex marriage, the second is a domestic partner in a State that an allows that but not same-sex marriage, the third is in an equally committed loving relationship in a State that doesn’t involve either. Now, your argument is that under Federal law the first would be admitted, should be admitted, but the other two would be kept out?

Alito asks this of solicitor general Verrilli, who resorts to an equal protection argument, rather than a federalist one. That seemed a dodge to me. What didn’t was his dismissal of the alleged interest of the federal government in uniformity across all the states:

GENERAL VERRILLI: [T]here is no uniformity advantage to Section 3 of DOMA as opposed to the traditional rule. There are no genuine administrative benefits to DOMA. If anything, Section 3 of DOMA makes Federal administration more difficult, because now the Federal Government has to look behind valid state marriage licenses and see whether they are about State marriages that are out of compliance with DOMA.

It’s easier, in other words, to retain the uniformity of recognizing any marriages a state deems valid and lawful, as was always the case before 1996. Then the kicker:

GENERAL VERRILLI: I think the House report makes this glaringly clear, is that DOMA was not enacted for any purpose of uniformity, administration, caution, pausing, any of that. It was enacted to exclude same-sex married, lawfully married couples from Federal benefit regimes based on a conclusion that was driven by moral disapproval. It is quite clear in black and white in the pages of the House report which we cite on page 38 of our brief -­ Whatever the explanation, whether it’s animus, whether it’s that — more subtle, more unthinking, more reflective kind of discrimination, Section 3 is discrimination.

In other words, you don’t have to be a bigot to discriminate. You could simply be trying, as Bill Clinton was when he signed DOMA, to get re-elected. Clinton wasn’t a bigot; he was just a callow pol. But when the House itself declares in its contemporaneous report that it is passing this to register moral disapproval toward an entire class of people, Scalia’s Lawrence dissent becomes more slaient. Yes, Lawrence did remove any constitutional basis for moral disapproval of a class of people in the law. End of story.

End of DOMA? My own impression of the arguments was that DOMA can survive this court only on the procedural grounds I don’t claim to fully understand. The best argument for it was Alito’s concern about soldiers or federal officials across state lines. But these grotesque discrepancies were allowed for in the case of race for over a century, and are still allowed for differences in age limits, consanguinity rules, etc. A unique federal definition of civil marriage both trumps the rights of states to determine this matter as they always have in this country, and was explicitly defended at the time on unconstitutional grounds of moral disapproval. What’s left?

What’s left is Edie Windsor’s lawyer and this eloquent, moving and powerful statement:

MS KAPLAN: No one has identified in this case, and I don’t think we’ve heard it in the argument from my friend, any legitimate difference between married gay couples on the one hand and straight married couples on the other that can possibly explain the sweeping, undifferentiated and categorical discrimination of DOMA, Section 3 of DOMA.

And no one has identified any legitimate Federal interest that is being served by Congress’s decision, for the first time in our nation’s history to undermine the determinations of the sovereign States with respect to eligibility for marriage. I would respectfully contend that this is because there is none…

It’s been a long, long journey, but you can see the mountaintop from here.

(Photo: A same-sex marriage supporter has her forehead painted with rainbow colors as she joins demonstration in front of the Supreme Court on March 27, 2013 in Washington, DC. By Jewel Samad/Getty.)