03/28/2013 06:30 pm ET Updated May 28, 2013

DOMA Undone! Seeing Beyond the Inequality of the "Times that Blind"

As predicted here, and elaborated in blog posts for the California Lawyer as well, DOMA is dead, most likely 5-4, though I retain the belief that the Chief Justice will join for reasons explained at length earlier in this space.

DOMA constitutes discrimination against a class of citizens. Treating same-sex couples differently for federal law benefits, privileges and responsibilities has no constitutional justification even under the lowest standard of review - rational basis.

Putting to one side -- just for a moment -- the rarefied, though academically interesting, debate over legal standing to represent one side or the other (and it is the anti-same-sex side that seems to lack willing advocates among public officials), the truly remarkable aspect of the case was how the language of understanding and acceptance came to displace the codification of ignorance and fear. While it is tempting to put the word "rank" in front of discrimination in the second paragraph of this essay because of the tangible harms caused by the federal disqualification from over 1,100 federal laws, that would not be following the generous spirit of healing and hope manifested by Roberta Kaplan, the attorney for Rita Windsor.

Ms. Windsor is the survivor of an over 40-year same-sex relationship subjected to one of the discriminatory directives of DOMA. Specifically, when her partner died, Ms. Windsor paid a hefty estate tax that no heterosexual couple would have paid. With her strong-minded hand upon the olive branch, Kaplan held forth to anyone who thought there was need to "defend" their marriages from those of different sexual orientation. Though non-sequitur, the assumed need to avoid the danger of difference was the birthing context of DOMA. In the same arc of time when the misdirection of George W. Bush created demand for additional military personnel to fight in Iraq, the nation was spurning offers of military service by gay and lesbian soldiers unless they promised to live each day in denial of their very selves. Either "don't ask, don't tell or "get out." No sign of exclusionary distaste -- not "No Irish or Catholic need apply"; not even "Whites only"; -- could have been more cruel than the statement: "We don't want you even if you are willing to risk your life for us."

Honesty required Justice Kagan to disclose verbatim the formal epithet of the House Report explaining the purpose for DOMA: The law, the Report recited, is designed "to reflect and honor our collective moral judgment and to express moral disapproval of homosexuality." What was the source of this collective moral condemnation? The Declaration of Independence and its recital that all are created equal? The Equal Protection principle of the Fifth Amendment? The Fourteenth Amendment? What? Of course, the House Report is silent.

Here, there was little said, because little could be said. Yet, as I have earlier written and jousted in conversation with the estimable Stephen Colbert , it is here where care will be needed in writing the opinion. Often, at this juncture in public discussion, the word "tradition" is invoked. This was my friend Chuck Cooper's principal fallback in his pro-Prop 8 advocacy, but it bears remembering that no small part of the American tradition is faith belief and yet, no mainstream faith tradition, among our plurality of traditions, condemns the homosexual person, as our laws have done, simply by his or her very status as a homosexual.

To be sure, there are differences among the faiths of America over the illicitness of same-sex marriage, and the justices should wisely write them now more carefully and with narrowed focus. Some faiths, not all, do raise scriptural or doctrinal objection to homosexual practice because that practice is said to contradict the essence of the "sacrament of matrimony." But even among those who freely chose to worship in church, synagogue, temple or mosque where that precept is held, there is typically a lively debate over whether it is possible for all human persons regardless of orientation to observe the tri-covenantal aspect of sacramental or religious marriage. After all, the argument goes, don't all people expect a life partner to fulfill a promise of faithful love toward each other; to be a source of responsible care, citizenship and neighborliness in community, and when faith is freely chosen by a married couple to honor what its spirituality holds dear. The House Report with its un-nuanced claim of "collective" moral authority was not only trampling upon constitutional equality, but by its virtual codification of a singular religious view, religious freedom.

This solicitude for faith difference was not discussed in either the Prop 8 or DOMA arguments, even as those faith differences drove the initial laws. Given the density of legal argumentation, the oversight was understandable, but unfortunate. Most Americans derive their world views from a faith community rather than state and local governments. Nevertheless, the prerogatives of the States oddly dominated. The line of inquiry was so odd that Chief Justice Roberts had an awfully hard time getting anyone to answer the question whether Congress tramples the constitutional authority of the states when it defines marriage for federal statutory purposes? The answer is "No." There is nothing wrong with the federal government -- from the standpoint of federalism -- defining the terms of its own laws even on the subject of marriage, which, while traditionally a state matter, is not outside the federal legislative power in Article I. Congress passes federal laws and can give federal definition to the words used. The relevant question or limitation upon both federal and state authority is the observance of equal protection.

When Congress passed DOMA, it embraced discrimination not equality. Roberta Kaplan did her advocates duty illustrating why DOMA could not be characterized as an attempt to shore up a neutral attitude of uniformity against what pro-DOMA lawyer Paul Clement argued was judicial activism under the Hawaiian sun. As Justice Kennedy pointed out, DOMA didn't just guard against "judicially active" states; it contradicted any democratic choice in favor of same-sex, too. Of course, the people -- whether they work in the Oval Office, on Capitol Hill, or behind the bench of the high Court -- are under the Constitution as well, and therein by the way lies the clarity needed, to rebut Prop 8.

Enter the jurisdictional wheels and reels of the DOMA argument.

It is hornbook law that Article III requires a tangible injury in fact that is caused by the party being challenged with the injury capable of redress. Unlike the Prop 8 case where those charged with enforcing the statute chose not to do so and the lower court erroneously brushed aside county officials who construed their duty as doing so, the president here was more careful. Yes, President Obama concluded DOMA to be unconstitutional, but comity and respect for the finality of the Supreme Court required, he reasoned, that there be continued enforcement of the law until the Supreme Court confirms that judgment. The Court tied itself up in knots over this.

Justice Scalia accurately reflected that an OLC opinion that both he and I abided by (both of us having been privileged at different times to direct that small, but vital Office of objective legal advice) gave the president less discretion. As we saw things in OLC, the president has a duty to "take care" that all laws, even one's he disagrees with, are enforced. Justice Scalia bemoaned that there was a new "regime" at OLC and it was wrong for the president to not enforce more frequently. On this, he may well be right. Nonetheless, it is important not to exaggerate. We are in big trouble if any president starts a practice of selective law enforcement on a regular basis, but that is not what is happening here where the president was deliberately waiting for the high Court to speak. In doing so, President Obama was also finding that his obligation of "taking care" includes the law of the Constitution.

In any event, Ms. Kaplan's client having been taxed in excess of $300,000 merely because, as she said, her partner's name was Thea, not Theo, had all the concrete injury needed for standing in federal court, and I leave to others the appropriateness of according legislative standing to members of the House.

As the arguments drew to a close, every effort to rationalize denying federal benefits to a class of married couples had been proven to be wanting. The Chief Justice noting as much tried a last gambit or two. They reflected his less charming ideological side that pops up from time to time. First, he tempted Ms. Kaplan who was about to compliment the public's change of view with his own seeming compliment that the gay and lesbian advocacy must be a by-product of its politically powerful stature. This was not an honor roll ribbon, but an effort to have on the record a statement from an advocate for the LGBT community that would undercut any claim for the Court's special protection that it reserves for classes that have endured a history of exclusion. Ms. Kaplan demurred; the recent success does not efface the history of exclusion and discrimination, she calmly replied.

So the Chief turned the statement around: "So 84 Senators based their vote on the moral disapproval of gay people?" That statement should sound familiar; it is the rhetorical question of a dying authority's last gasp. A good deal of the 1960s was a reaction to smug reassurances that "just because the country club lacks black members doesn't mean we don't have black friends." Senators are worthy people, but even they presumably would deny infallibility -- at least one would hope.

Ms. Kaplan declined the opportunity to meet denigration with denigration. "No," she said, I think what is true, Mr. Chief Justice, is that times can blind... " The Chief Justice is a very gracious and charming fellow, but even he seemed startled by the decency of that response. Ms. Kaplan elaborated: You see, sir, "back in 1996 people did not have the understanding that they have today, that there is no distinction, there is no constitutionally permissible distinction." For the most part, the law that so perniciously imposed second-class citizenship upon her client, said Ms. Kaplan, was the product of "an incorrect understanding that gay couples were fundamentally different than straight couples, an understanding that I don't think exists today and [it is in ] that sense [that] I'm using... 'Times can blind.'"

And we will soon see whether kindness can enlighten.