It was a dramatic week for the nation and the Supreme Court. Scores of people slept in the snow in hopes of a ticket to argument; thousands more rallied in front of the Court to show their support for marriage equality, and often their own unions. ("IF GAY MARRIAGE WERE LEGAL," read one sign yesterday, "TODAY WOULD BE MY 31st ANNIVERSARY.") They were hoping for a clarion call for equality from the nation's highest court.
But when Chief Justice John Roberts said today, "The case is submitted," the law's engines of circumlocution took over. And such signs as could be read Tuesday and Wednesday suggest that those crowds should prepare for anticlimax, and perhaps disappointment.
Heartbreak is not out of the question.
Wednesday, as Tuesday, a number of justices seemed to be seeking a way not to decide United States v. Windsor. And it seemed more likely than before that there are four justices who are unwilling to reach any result that will give legal approval to same-sex marriage.
The question seems again to come down to Justice Anthony Kennedy, who posed the question many expected to be on his mind: "The question is whether the federal government under our federalism scheme has the authority to regulate marriage."
This argument is a potential winner for Edith Windsor, the plaintiff. Windsor and her partner of 41 years, Thea Spyer, married in Canada in 2007. When Spyer died in 2009, Windsor was hit with a tax bill of $363,053 on her partner's estate. A federal court determined that Windsor and Spyer were legally married under New York law; but she could not receive the spousal deduction from the estate tax because of the federal Defense of Marriage Act, passed in 1996, which requires the federal government to award spousal benefits of all kinds only to opposite-sex couples, even if they are legally married under state law.
The Second Circuit Court of Appeals held that DOMA violates the Fifth Amendment requirement of equal protection because it discriminates on the basis of sexual orientation. Gays and lesbians as a class, the lower court held, have suffered so much discrimination over the years that laws that harm them are subject to "heightened scrutiny," like laws that discriminate by sex.
The federal government, at President Obama's direction, admitted its belief that DOMA is unconstitutional. Wednesday, Solicitor General Donald Verrilli argued to the Court that Windsor, not the Internal Revenue Service, should win. His argument asked the Court to adopt the Second Circuit's "heightened scrutiny" test. Argument ran for one hour and 50 minutes -- less than the six hours in the health-care cases, but still more than the Court's normal 60-minute session.
By the end of that time, it seemed unlikely that the Court would follow Verrilli's invitation to create a new "protected class." Instead, if Edith Windsor ekes out a win, it is like to come on federalism grounds, or even grounds of standing.
Because the government conceded below that DOMA could not stand, the statute was represented Wednesday by former Solicitor General Paul Clement, hired by members of the House to argue for its validity. Clement avoided any claim that gay marriage was undesirable or unworthy. DOMA does not infringe equality, he argued, it assures it: All same-sex couples are treated equally. Congress has the power to define marriage as it chooses for its own statutes, for reasons of insuring that federal law is uniform around the country. "We don't want somebody, if they are going to be transferred in the military from West Point to Fort Sill in Oklahoma, to resist the transfer because they are going to lose some benefits," he said in his closing argument.
Justice Samuel Alito emerged Tuesday and Wednesday as the general of the conservative wing. He obliquely warned that any recognition of same-sex marriage will simply beget new challenges. What if the federal government allowed the spouse of a wounded soldier, married under state law, to visit in the soldier in hospital? Wouldn't it then be discriminating against another partner, recognized by state civil unions? And what about gay partners in other states where no unions are recognized at all?
The warning was clear: State same-sex marriage is the camel, and its nose will tear down the tent.
The liberal to moderate justices fought back by suggesting that DOMA creates second-class marriages. DOMA means the federal government "can create a class they don't like -- here, homosexuals -- or a class that they consider is suspect in the marriage category," Justice Sonia Sotomayor said to Clement.
Justice Elena Kagan challenged Clement by citing the language of a congressional report issued on DOMA's passage that said "Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality." The courts do not void laws because "a couple of lawmakers may have had an improper motivation," Clement replied.
Solicitor General Donald Verrilli rose to argue that "heightened scrutiny" is the test for DOMA. As the lawyer for the federal government, he refused to make any argument based on federalism. Unlawful discrimination against gays and lesbians, he repeated several times, is the true issue in the case.
"You think Congress can use its powers to supersede the traditional authority and prerogative of the States to regulate marriage in all respects?" Kennedy asked. It was a slow pitch, letter-high; but Verrilli kept his bat on his shoulder: "The problem is an equal protection problem from the point of view of the United States."
He did admit that "the federal government is not the 51st state," but he reverted to equal protection, urging the Court to move in a direction it seemed manifestly unwilling to go. Recognizing "heightened scrutiny" in this case, some justices clearly worried, would require applying it to state marriage laws too, pushing the Court toward a rule that would require same-sex marriage in all 50 states. That was where Alito's warning about the three military couples surfaced; once loosed, "heightened scrutiny" is hard to cabin, he seemed to be saying.
When lawyer Roberta Kaplan rose to argue for Edie Windsor, Chief Justice Roberts had had enough. "You're following the lead of the Solicitor General and returning to the Equal Protection Clause every time I ask a federalism question." he told her. His worry: What if Congress adopted a law that treated all gay couples as married, regardless of the state law? "Whether or not the federal government could have its own definition of marriage for all purposes would be a very closely argued question," she responded.
Justice Alito returned to his warning of equal protection problems ahead if the Court rules for Windsor. What would happen when a married couple from North Carolina, which has no same-sex marriage, became subject to tax? "If the estate tax follows state law, would that not create an equal protection problem similar to the one that exists here?"
Chief Justice Roberts returned to the issue of disapproval Kagan had earlier raised. He asked Kaplan if "84 Senators [voting for DOMA] based their votes on moral disapproval of gay people?" She responded, "times can blind, and ... back in 1996 people did not have the understanding that they have today, that there is no distinction, there is no constitutionally permissible distinction."
Roberts pounced. "I suppose the sea change has a lot to do with the political force and effectiveness of people representing, supporting your side of the case?" In sea metaphors, this was a reef. If gays are now powerful, they do not need "heightened scrutiny"; their lobby can prevail in Congress. "You don't doubt that the lobby supporting the enactment of same sex-marriage laws in different States is politically powerful, do you?" he asked. "Political figures are falling over themselves to endorse your side of the case."
"I don't believe that moral understanding comes from political power," she replied.
The first 50 minutes of argument Wednesday were devoted (as was much argument Tuesday) to the question of whether the case even belonged before the Court. If the government has conceded the issue, why does a group of House members get to argue for the law? For that matter, if the government agrees with the court below, why should it get to appeal? Court-appointed amica curiae Vicki C. Jackson, a Harvard professor, told the Court that, because the government did not seek "relief" from the judgment requiring it to refund Windsor's taxes, the "natural urge [to resolve the issue] must be put aside" and "await another case for another day."
"We have injury here in the most classic, most concrete sense," Kagan objected. "Whether the government is happy or sad to pay that $300,000 the government is still paying the $300,000." Clement told the Court that Congress had standing to protect its "single most important prerogative ... the prerogative to pass laws."
Oral argument is notoriously hard to read; few foresaw last year that the Affordable Care Act would survive its Court trial by fire. One who did was Lyle Deniston, dean of the Court press corps, who has covered the Court since the days of Earl Warren. "DOMA is in trouble," reads the headline on his argument recap for SCOTUSblog.com. If that is true, it seems, it is not because of enthusiasm for the cause that brought the rainbow flags to the Court steps this week, but for legal reasons that are hard to explain, and may be soon forgotten.
Windsor's trumpet will sound from the Court by the end of June; but it seems likely to strike an uncertain note.
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