WASHINGTON -- A majority of Supreme Court justices on Wednesday morning appeared skeptical of the constitutionality of the Defense of Marriage Act (DOMA), which defines marriage for federal purposes as between a man and a woman. Whether the justices believe they have the power to make any decision in this case, however, remained murky.
It was the second day in a row that the high court heard arguments dealing with same-sex marriage. At issue Wednesday in United States v. Windsor was whether it was constitutional for the U.S. government to refuse to recognize same-sex marriages that had been recognized by the states.
Justice Anthony Kennedy, who said Tuesday that the children of same-sex couples “want their parents to have full recognition and legal status,” seemed troubled by the fact that DOMA refuses to recognize even those same-sex unions that are already recognized by states.
"When the federal government has 1,100 laws, which means in our society the federal government is intertwined with citizens' day-to-day lives," Kennedy said, then Congress is doing more than simply ensuring a uniform definition of marriage.
DOMA was only helping states, Kennedy said, “if they do what we want them to do.” He pointed out to Paul Clement, the lawyer defending DOMA, that the law applied to states “where voters have decided” to legalize same-sex marriage and stated that he believed there was injury to same-sex couples whose marriages were not recognized by the federal government.
Section 3 of DOMA, at issue in Wednesday morning's case, says "the word 'marriage' means only a legal union between one man and one woman as husband and wife" for purposes of "any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States."
Plaintiff Edie Windsor, 83, brought suit against the federal government after the Internal Revenue Service cited DOMA in denying her a refund for the $363,000 in federal estate taxes she paid following the 2009 death of Thea Spyer, her partner for over 40 years. Windsor and Spyer had married in Canada in 2007, but resided in New York. Because Windsor would have been eligible for an estate tax exemption had Spyer been a man, she argues that DOMA's Section 3 violates her equal protection rights under the Fifth Amendment.
On this point, Windsor had a friend in Justice Ruth Bader Ginsburg, who said that DOMA created "two types of marriage," likening same-sex marriage in the states to the "skim milk" version of straight unions.
Justice Kennedy also showed hostility to DOMA. But like his position in the Proposition 8 oral arguments Tuesday, he appeared reluctant to rule on equal protection grounds. Instead, the question for him was "whether or not the federal government under our federalism scheme has the authority to regulate marriage."
Solicitor General Donald Verrilli, representing the Obama administration on the merits of the case, avoided Kennedy's question, choosing instead to emphasize Congress' discriminatory purpose in enacting DOMA in 1996.
The law "is not called Federal Uniform Benefits Act," he said. "It's called the Defense of Marriage Act."
Justice Elena Kagan pushed a similar point. She told Clement, who was defending DOMA on behalf of the House of Representatives' Bipartisan Legal Advisory Group, "that maybe Congress had something different in mind than uniformity" in the definition of marriage. Suggesting the law was "infected with prejudice, fear, spite, and animus," Kagan read a portion of the House Report, which said DOMA was meant to reflect Congress' "collective moral judgment and to express moral disapproval of homosexuality."
Perhaps key to the justices' analysis of the case is whether to regard laws that single out gays and lesbians with what's called "heightened scrutiny" -- a level of review now used to strike down measures that single out politically disfavored and less powerful groups.
On this point, Chief Justice John Roberts focused in on the “sea change” in public opinion on the question of same-sex marriage. How did that “sea change” come about, he asked, unless gay and lesbian Americans had amassed significant political power. Roberts said it seemed to him that politicians were “falling over themselves” to endorse gay marriage.
Roberts also wondered why, if President Barack Obama believes DOMA is unconstitutional, he continues to enforce it. “I don’t see why he doesn’t have the courage of his convictions,” the chief said. Kennedy chimed in later, saying he didn’t “understand why they continue to enforce” DOMA.
Clement said that if 10 years from now, there were only nine states left that didn’t have gay marriage, the federal government might be fully entitled to force the remaining states to recognize such unions.
Judging from Wednesday's first 50 minutes of oral arguments, however, the case may instead be decided on whether the justices have the power to hear the case at all.
In United States v. Windsor, the U.S. District Court and the U.S. Court of Appeals for the 2nd Circuit both declared DOMA unconstitutional. The Obama administration agrees with them.
Chief Justice Roberts asked Deputy Solicitor General Sri Srinivasan, arguing on behalf of the Obama administration, whether there was "any case where all parties agreed with the decision below," but a court "nonetheless upheld" its ability to hear the case.
The chief's question about legal standing reflects DOMA's long, strange trip to this point. A bipartisan piece of legislation, it was signed into law in 1996 by President Bill Clinton, who now believes it should be overturned.
In 2010, a Department of Justice official told reporters that defending DOMA was “difficult” for the Obama administration, while Attorney General Eric Holder told D.C. law students that the DOJ “has a responsibility to defend those statues that the Congress has passed if there is an argument that can be made to defend those statutes."
But things changed in 2011, when Holder announced that the DOJ would no longer defend DOMA. Holder was not in the courtroom on Wednesday, but Deputy Attorney General James M. Cole and Acting Assistant Attorney General Stuart Delery, who runs the DOJ's Civil Division, were in attendance on behalf of the department.
After the DOJ backed off from defending the law, House Republicans stepped in. The Bipartisan Legal Advisory Group hired Clement, George W. Bush’s former solicitor general, to defend the law on behalf of the federal government.
Clement faced difficult questioning Wednesday from the Supreme Court's liberal wing on why the House had any legally recognizable interest in representing a position the executive has abandoned.
"How is this case any different from enforcing general powers of the United States," Justice Stephen Breyer asked.
See photos from the Supreme Court below, and scroll down for live blog updates:
03/27/2013 5:36 PM EDT
Rep. Xavier Becerra Brings Daughter To SCOTUS To Witness Support For Gay Marriage
Dressed in jeans and a fleece jacket, Rep. Xavier Becerra (D-Calif.) was trying to be discrete when he brought his daughter Natalia to the Supreme Court on Wednesday to check out the crowd gathered outside in support of gay marriage.
But Spanish-language media soon recognized him and pulled him in front of the cameras. Soon enough, he was on a makeshift stage with Natalia drawing cheers from members of the crowd, describing them as "soldiers for equality."
Later talking to The Huffington Post, Becerra, who is the chairman of the House Democratic Caucus, recalled his vote in 1996 against DOMA, something he said brought on significant criticisms from his church.
"I'm a proud Catholic," Becerra said, standing next to Natalia, who had a rainbow ribbon tied in her hair. "But you do what you feel is right."
Nearly everybody invoking religion outside of the court on Wednesday did so in the name of a loving God who embraces all people, including LGBT people who want to marry their same-sex partner. But there were a handful of others with signs condemning gay marriage and pointing to the Bible as the reason for their stance. Becerra said he respected those people's religious views, but said their beliefs don't apply to him or anyone else.
"When you enter into the public forum, when you start to have our civil life dictated by our religious values, our Constitution says no," he said. "Our Constitution says everyone is created equally. If that conflicts with someone's religious values, we still say, in this country, that the civil value wins out."
03/27/2013 4:50 PM EDT
Roberta Kaplan, Attorney for DOMA Plaintiff Edith Windsor: 'We Feel Good'
Roberta Kaplan, the attorney representing the woman at the center of the DOMA case before the Supreme Court, was all smiles after she wrapped up the nearly two hours of arguments over the unconstitutionality of the federal ban on gay marriage.
"I'm not in the business of predicting, but I'm going to use the statement that Edie made, which is, she felt good. We feel good," Kaplan told The Huffington Post.
Kaplan is representing Edith Windsor, the 83-year-old widow from New York who is challenging the constitutionality of DOMA. Windsor was married to her partner Thea Spyer in Canada, and when Spyer died in 2009, Windsor was required to pay more than $363,000 in federal estate taxes on her inheritance of Spyer's estate. If their marriage had been recognized in the same way that same-sex marriages are recognized in the United States, she wouldn't have had to pay those taxes.
Standing outside of the court shortly after the day's oral arguments ended, Kaplan said there were no surprises in the line of questioning she got from the nine justices.
"We worked very hard on this case, did a lot of practicing, prepared a lot. Fortunately, we were able to predict almost all of the questions," she said.
For now, Kaplan, like everyone else, will have to wait until the summer to find out the court's verdict on the case. Until then, she said, there's one thing that stands out as her top priority.
"I'm focused on Edie getting a decision while she's still healthy and alive. That's my focus," Kaplan said. "She'll be 84 in June."
03/27/2013 4:10 PM EDT
Couple Celebrates 31st Anniversary Outside SCOTUS
HuffPost's Lila Shapiro reports:
Bonnie Quesenberry and Fay Jacobs celebrated their 31st anniversary in front of the Supreme Court on Wednesday. It would have been their 31st wedding anniversary had marriage been legal for same-sex couples back when they got together, in 1982, after meeting at a conference at John Hopkins University.
Quesenberry, a retired dental lab technician, wore small purple sunglasses, and Jacobs, a writer, wore black fleece. As the two women waited on the steps to hear how the arguments in the case against the federal Defense of Marriage Act inside the court were going, they bumped into another lesbian couple, also together for 31 years.
"We're the 31 club!" Jacobs exclaimed, holding out her home-made banner, which read, "If Gay Marriage were LEGAL Today would be our 31st Anniversary," and laughing.
"We've had congratulations said 1,000 times," Quesenberry said, as the four women all embraced. "This just couldn't be better."
03/27/2013 4:08 PM EDT
GOProud Leader: House Republicans Are 'Not Done Losing Yet'
As protesters rally in support of nixing DOMA outside of the Supreme Court on Wednesday, across the street in the U.S. Capitol, only a handful of House Republicans agree with their stance. Three, to be exact.
Jimmy LaSalvia, the executive director of the gay conservative group GOProud, said he couldn't understand why House Republicans aren't talking about the need to repeal DOMA. After all, he said, even conservatives who oppose same-sex marriage agree that the law is unconstitutional.
"At this point, I'm absolutely baffled," LaSalvia told The Huffington Post. "I don't think they're done losing yet. What do you think? I think it's because they're not done losing yet."
LaSalvia said true conservatives know the Constitution leaves issues relating to marriage and family law up to the states. In the case of DOMA, that fact is "particularly important" from a constitutionally conservative point of view, he said.
House Republicans "appear to be the only ones in America who think that DOMA is constitutional," he said. "The establishment leaders in Washington in the Republican Party are continuing to demonstrate how out of touch they are with Americans."
One shift has occurred among Republican lawmakers in recent years, from openly trashing gay marriage during speeches on the House floor to mostly just staying silent on the issue. But LaSalvia said that doesn't count as progress for his party.
"So now they've become the 'don't say gay' group," he said. "But that still makes them look out of touch because everyone else in the country is talking about it!"
03/27/2013 2:41 PM EDT
Edith Windsor At SCOTUS: Marriage Is A 'Magic Word'
The 83-year-old plaintiff in the Defense of Marriage Act case spoke to media after being heard by the U.S. Supreme Court, but her remarks emphasized the human angle of her "overwhelming" fight rather than strictly economics.
Read more here.
03/27/2013 2:22 PM EDT
Moms Should Marry
WASHINGTON -- Michelle McFadden, 33, came out to the Supreme Court to advocate for marriage equality on Tuesday, but on Wednesday she decided to return with a special guest: her five-year-old daughter, Bailey.
"This is history. I came out a second day in a row to bring my 5-year-old daughter, because the issue affects her as much as it affects me and my wife," McFadden said.
Bailey held a sign reading, "Let my parents be married because they love each other and because I love them too!" while McFadden's sign read, "Kids need unconditional love, not your hate. Shame on you."
McFadden said she and her wife, who live in Maryland, married last year after 15 years together.
When asked what repealing DOMA would mean for her and her wife, McFadden replied, "Benefits."
"I'm a stay-at-home mom to our two kids, and my wife works for the federal government," she said. "I don't get her benefits because of DOMA. So the repeal of DOMA would mean I get health insurance for the first time in three years."
Bailey, when asked what she thought of being at the Supreme Court for the historic case, simply replied, "I think it's cool."
Watch an interview with McFadden and her daughter:
-- Amanda Terkel
03/27/2013 2:03 PM EDT
Longtime Couple Begins To Plan Wedding
WASHINGTON -- Jo Deutsch, 53, and Teresa Williams, 56, have been together for nearly 30 years. And on May 18, they're finally getting married.
"We have three kids, and we want them to have the same rights as all of their friends by having us have the opportunity to get married," Williams said.
The two joined hundreds of people at the Supreme Court on Wednesday to advocate for the repeal of the Defense of Marriage Act. Both were wearing pink ribbons reading, "Bride To Be."
When asked whether they ever expected to be seeing so much progress on LGBT rights, Deutsch -- who works for the group Freedom to Marry -- replied, "We never thought we'd be buying wedding dresses in our lifetime, but we've done that, too!"
Watch an interview with Deutsch and Williams:
-- Amanda Terkel
03/27/2013 2:01 PM EDT
Clarifying 'Skim Milk Marriage'
Ginsburg: "You're saying, no, State said two kinds of marriage; the full marriage, and then this sort of skim milk marriage."— Ryan J. Reilly (@ryanjreilly) March 27, 2013
03/27/2013 2:00 PM EDT
Couple May Move To Sweden If DOMA Isn't Struck Down
WASHINGTON -- For Anna Olsson, 41, and her partner, Michelle Bailey, 46, a Supreme Court decision to strike down the Defense of Marriage Act has potentially huge consequences in their lives: It means they would get to stay in the United States.
Olsson, who is from Sweden, is in America on a work visa -- meaning she doesn't have a green card or U.S. citizenship.
"I basically have no guarantee for staying here, whereas if I were marrying a man, I would instantly be granted a green card and potentially citizenship," Olsson told The Huffington Post.
The couple came out to the Supreme Court on Wednesday morning, with hundreds of other marriage equality supporters, to show their support for the end of DOMA. Federal law defines marriage as being between one man and one woman, meaning that even couples who are legally married in their states are denied federal benefits -- such as on immigration matters.
Olsson and Bailey are currently living in Takoma Park, Md. When asked how she felt about the prospect of moving to Sweden, Bailey replied, "I think Sweden would be fantastic, but I would rather do it because I want to move, not because I'm forced out of my own country just because I want to have the same equal rights as anybody does to protect their family and their loved ones. This is what this is about. ... I would love Sweden, but I love this country and I want to stay here."
Watch an interview with Olsson and Bailey:
03/27/2013 1:27 PM EDT
Pelosi On Paul Clement Defending DOMA
@ jbendery :
Pelosi on Paul Clement defending DOMA in court: "What a stale role to play in life."