On DOMA, Real-World Arguments Could Sway the Supreme Court

Moderate justices (read: Kennedy) may hesitate to call same-sex marriage a constitutional right. But these briefs written by military and business leaders may give them a more modest way to strike down the Act.

windsor.jpg Eighty-three year old Edith Windsor stands outside a New York court of appeals in September. United States v. Windsor will be argued at the Supreme Court next week. (Reuters)

After the Supreme Court hears oral argument in the two same-sex marriage cases next week, it could issue a momentous ruling that gay marriage is a constitutional right in all 50 states -- or that it is not.

But, the Court has left itself numerous more modest options to avoid such a sweeping ruling when it decides whether the California can outlaw same-sex marriage through a voter initiative or whether Congress can define "marriage" for all federal programs as "only a legal union between one man and one woman."

A good summary of the major legal choices available to the Court in the Proposition 8 and DOMA cases can be found at the venerable SCOTUSblog. So is a listing of the more than 50 friend of the court (amicus) briefs filed in the cases.

In major cases like, the justices or their law clerks will often read these briefs from reputable amici -- many of whom can write at length on issues the main parties may be able to argue in just a few pages. The analysis contained in some of these amicus briefs -- about federal programs historically using state law in defining marriage and about the adverse impact that same-sex marriage bans have in the military and in the workplace -- could play an important role in shaping a "moderate," compromise decision in support of gay marriage.

One plausible moderate outcome is that a 5-4 Court -- with Justice Anthony Kennedy, of course, as the swing vote -- would disallow the California gay marriage ban on narrow state-specific grounds, as did the federal appeals court below it. Or it could disallow the ban on technical, jurisdictional grounds (the Court asked for special briefing here), eschewing a broad ruling and leaving it up to the other states to determine the status of same-sex marriage.

And the Court could declare DOMA's federal definition of marriage unconstitutional, as federal courts have held and as the Obama Administration has argued. This moderate outcome would "nudge" constitutional law towards voiding bans on same-sex marriage in certain settings for now. But it would still leave lots of play in the political joints for states to continue debates about the definition of "marriage" under state law, as public opinion today trends towards acceptance of gay marriage. It would also leave the Court free to return to broader issues of constitutional right in the future, if necessary, as attitudes and laws (and the justices) change.

If it were to strike down DOMA, the Court (i.e., Justice Kennedy) could be influenced by discussions about the real world, including critical points emphasized in the amicus court briefs. Here are some key points from amici that could influence the justices toward a pro-same-sex marriage compromise.

- Federal law has historically looked to state law for definitions of "marriage" in federal programs. A brief filed by senior executive branch officials responsible for administering federal programs argues that DOMA unconstitutionally singles out same sex couples for separate treatment under federal programs that have, over the past century, deferred to state law definitions of "marriage." (Disclosure: I am one of the officials.) This is in keeping with our nation's long tradition of defining and regulating marriage at the state level.

The brief of ex-officials rebuts the contention of DOMA's proponents that the law promotes national uniformity. It notes that, with respect to marriage between men and women, state laws have great variation, which is reflected in the administration of federal laws. It also demonstrates that DOMA does not, as proponents claim, ease the Federal administrative burden, because departments and agencies are long accustomed to dealing with such variation. Having yet another classification for certain types of married couples would make matters more, not less, complicated.

This brief is important because, in striking down DOMA, the Federal Court of Appeals for the First Circuit held -- citing recent Supreme Court decisions -- that when a law intrudes into an area where state law has traditionally governed and discriminates against groups historically disadvantaged, then careful review of government interests is warranted.

Presented by

Ben W. Heineman Jr.

Ben Heineman Jr. is is a senior fellow at the Belfer Center for Science and International Affairs, in Harvard's Kennedy School of Government, and at the Harvard Law School's Program on Corporate Governance. He is the author of High Performance With High Integrity.

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