03/27/2013 08:00 pm ET Updated Feb 02, 2016

Supreme Court Likely to Strike Down DOMA -- Here's Why

This morning I had the chance to sit in the Supreme Court's press gallery and hear two packed hours of oral arguments on the constitutionality of Section 3 of the Defense of Marriage Act (DOMA). A big first impression: It seems quite likely that Section 3 of DOMA will be struck down by the Supreme Court. But the court may not get to that decision the way observers might have expected, and there remains a chance that it won't get to that question at all. Today's oral arguments felt like a marathon: We had a brief break between the jurisdictional and merits questions (and by "brief" I mean brief), but other than that, it was over two hours of solid legal back-and-forth. Like yesterday, the arguments were wonky and didn't include any fireworks.

First Impressions

The jurisdictional/standing arguments made it clear that there is skepticism among the justices as to whether the U.S. House of Representatives' Bipartisan Legal Advisory Group (BLAG) has standing to defend DOMA in court, but also uncertainty about whether the federal government should be able to appeal a lower court decision that it agrees with. For instance, Chief Justice John Roberts asked why President Obama's Department of Justice has not simply ceased enforcing DOMA rather than continuing to enforce it while attacking it in the courts. At one point he told Deputy Solicitor General Sri Srinivasan (arguing on behalf of the federal government) that recognizing jurisdiction in this case (where all parties agree with the lower court's decision) would be "wholly unprecedented."

However, Justice Anthony Kennedy did seem convinced that there was an injury present in the case, as did Justice Elena Kagan (who said, simply, that there's "a lot of money" at stake in the case). Chief Justice Roberts also opened up his own argument a bit, asking whether a chamber of Congress could move to join a lawsuit if it simply didn't agree with the government's arguments in favor of a law it had passed. Several justices questioned Paul Clement (the lawyer speaking on behalf of BLAG) on why the just-five-member body could throw the full weight of the U.S. House of Representatives behind DOMA, and they pointed out that a full House vote would be more persuasive. Kennedy asked if the Senate could intervene on the other side of the case, and Clement said that it could not.

On the merits of the case, the justices spent a significant a significant amount of today's argument time questioning all parties on whether DOMA was an unconstitutional intrusion of the federal government into an area traditionally reserved for state law. For instance, when Solicitor General Donald Verrilli Jr. stepped up to represent the federal government's position, the justices grilled him on this issue and seemed very skeptical of his claim that there is no federalism problem inherent in DOMA.

Justice Kennedy in particular pointed out that DOMA affects access to over 1,000 federal rights and told Clement that DOMA was at "real risk of running in conflict" with the state police power to regulate marriage. Justice Sonia Sotomayor critiqued Clement's argument that DOMA could be defended as an expression of the federal government's wish that marital eligibility be uniform for the purposes of federal law, saying that doing so would treat couples in New York differently from those in Nebraska. Justice Stephen Breyer asked whether Congress could limit federal marital benefits based on age or residency, and when Clement said that it could, the justice said that doing so would be thoroughly irrational.

Nevertheless, there appear to be at least five clear votes on the court for invalidating DOMA, either on issues of federal overreach or on equal protection grounds. On the latter issue, the court spent some time, but not much, discussing whether laws that classify people based on sexual orientation should be subject to the more searching judicial review of heightened scrutiny. Justice Kagan in particular questioned whether or not Congress might have had other motives in passing DOMA besides uniformity; Justice Sotomayor quoted the House's record of the law's enactment, which stated that the law was intended to "express moral disapproval of homosexuality." But Chief Justice Roberts asked both Verrilli and Roberta Kaplan, the lawyer representing Edie Windsor, the plaintiff, whether the legislators who voted in favor of DOMA could be explicitly accused of animus, which both lawyers disavowed. Justice Breyer pressed Clement for a "list of reasons" why Congress would want to limit federal marital benefits to opposite-sex couples only.

Given today's arguments, it does seem that DOMA is on its last legs and that the Supreme Court will likely strike it down this summer if it decides Windsor's case on the merits. But there are many complex arguments on the standing/jurisdiction questions that the justices will have to address in their decision. Here's a more in-depth look at both sections of today's arguments.

Questions of Standing and Jurisdiction

The first lawyer up to argue was Vicki Jackson, a Harvard law professor whom the court had appointed to take the position that BLAG does not have standing to defend DOMA and that the Supreme Court therefore has no jurisdiction over the Windsor case, given that the federal government officially agrees with Windsor that DOMA is unconstitutional. Her central arguments was simple: The federal government is only asking the Supreme Court to affirm the lower courts' decisions, as opposed to asking for redress, which is the traditional remedy that courts can supply, and BLAG cannot point to any cognizable injury that it would suffer if DOMA were overturned.

Justice Antonin Scalia asked why the district court hadn't simply ordered the federal government to refund Edie Windsor's money without deciding the merits of DOMA, given that the federal government argued against DOMA in that court (after modifying its position from its original defense of the law). Justice Breyer likened the president's position to that of a trustee who feels obligated to obtain a final, authoritative decision on a question of law before relinquishing some of the trust's money, even if he or she were to agree with the legal decision on the law. Justice Kennedy seemed to agree that there was an injury in the Windsor case for the government, with Kagan jumping onto his point to say that whether the government is "happy or sad" to pay the tax refund, there nevertheless is a fiduciary injury. Justices Sotomayor and Breyer seemed on board with this reasoning.

As I mentioned before, Chief Justice Roberts told Srinivasan that the federal government's argument that it could appeal a ruling where all parties are pleased by the decision would be "wholly unprecedented." Justice Scalia expressed deep discomfort with the idea, calling it a strange new world where the attorney general could simply choose not to defend laws, which he worried would bring many more cases like Windsor (where both parties agree) to the Supreme Court. In defense of the government's position, Srinivasan quoted a previous Supreme Court decision, Immigration and Naturalization Service v. Chadha, which held that the United States is the aggrieved party in any ruling against it, even if it agrees with the ruling. Justice Sotomayor steered Srinivasan to the question of BLAG's standing, to which he also quoted Chadha, which he argued set a precedent for amicus status for the chambers of Congress, as opposed to status as full parties.

Arguing for BLAG, Clement read Chadha to the reverse effect, arguing that it in fact points to the U.S. House of Representatives as the proper party to defend a law in court if the executive branch of the federal government won't. Chief Justice Roberts pushed back, asking Clement whether the House could file to join a lawsuit if it didn't like the executive branch's arguments in defense of a law that Congress had passed. Kagan then jumped in, asking whether the House could try to join a lawsuit if the attorney general decided to interpret a law more narrowly than it liked. Justice Kennedy asked whether the Senate could join as a party to defend DOMA, to which Clement replied that the Senate could not. Justice Alito then asked why one chamber of Congress alone should be able to defend a law when it takes both of them to pass one. Clement also ridiculed a motion to dismiss the Windsor case, filed by the federal government when the case was in the district court, arguing that what the government wrote was essentially for the purpose of creating a suitable appeal. In response, Justice Kennedy said that that brief could give anyone "intellectual whiplash."

Long story short, given today's oral arguments, it seems unclear whether the Supreme Court will get past the standing questions to consider DOMA on the merits. Looking at the justices' questions, there doesn't appear to be much support among them for the contention that BLAG has standing to join the case as a party. But the question of whether the United States can appeal a decision that it agrees with is much more central to the Windsor case. If the court finds that the appeal was invalid, it simply will not be able to rule on the merits of the law. Justice Kennedy and the court's liberals did seem to lean toward the idea that the court does have jurisdiction because there is a fiduciary injury to the United States. That means that the court will probably issue a decision on the merits.

The Merits

My general impression from today's oral arguments is that there are at least five votes to strike down the law, although the justices seem to be leaning toward a decision based on the question of the federal government's intrusion on traditionally state affairs, as opposed to a strict equal protection analysis.

Clement was up first. He framed the legal question narrowly: If it is constitutional for states to define marriage as something limited to opposite-sex couples, shouldn't it also be constitutional for the federal government to have its own definition? Justice Ruth Bader Ginsburg jumped on this quickly, pointing out that a marriage that does not provide federal benefits might prompt anyone to ask, "What kind of marriage is this?"

Justice Kennedy noted that DOMA prohibits legally married same-sex couples from accessing over 1,000 federal rights and told Clement he was at "real risk of running in conflict" with states' police power to regulate marriage. Clement replied that DOMA simply provides for consistency in the federal definition of marriage, but Kennedy pointed out that it only provides consistency when it comes to differing state marriage laws regarding sexual orientation and not any other classification.

Justice Sotomayor also took issue with the idea that DOMA provides consistency for federal benefits, saying that Clement's argument elides the fact that the federal government treats married couples in New York differently from those in Nebraska. Justice Breyer picked up this line of reasoning, asking whether Congress could constitutionally limit federal marital benefits on the basis of age or residency. Clement said that it could, which Breyer scoffed at, saying that Clement's argument was essentially that a desire for uniformity could save otherwise irrational classifications. Why are marriages between same-sex couples different, he asked, and what about them makes the federal government need a uniform national definition for federal benefits?

Clement told Breyer that DOMA allows the states to make decisions about marriage equality for themselves instead of allowing one state to determine equal marriage rights (in 1996, the fear of those who supported DOMA was that this state would be Hawaii) and thus bring marriage equality to the whole country. Justice Sotomayor was unconvinced, asking why the federal government should worry about what would happen to the states in this regard. Justice Kennedy also pointed out a central contradiction in Clement's argument that DOMA was passed in order to help the states: Even if Section 2 of the law protects states from recognizing other states' same-sex marriage licenses, Section 3 of the law undoubtedly harms states that do decide to extend equal marriage rights to same-sex couples. In essence, Kennedy wryly pointed out, the only states that benefited from DOMA were those that did what the government wanted (i.e., retained a definition of marriage that limited it to opposite-sex couples only).

Clement kept coming back to his uniformity argument, but several of the justices seemed quite unconvinced. Justice Ginsburg noted that marriage affects every aspect of life and said that DOMA essentially creates two types of marriage in America, the full kind and another one that's more like "skim milk." Justice Kagan denounced the uniformity argument entirely, pointing out that the only uniform aspect to the federal government's definition of marriage before DOMA was that it deferred to the states' own definitions. Given that such a federal definition had never been attempted before DOMA, she asked, shouldn't that be a red flag that the law was passed because of animus?

Justice Sotomayor continued on this line of reasoning, quoting the U.S. House of Representatives' record of the passage of DOMA, which stated that the law expressed Congress' "moral disapproval of homosexuality." Justice Breyer asked Clement to assume that uniformity isn't enough to save DOMA and asked for a list of "really specific things" that would explain why Congress needed to limit federal marital benefits to same-sex couples for the sake of uniformity.

Next up was Solicitor General Verrilli, who faced very tough questioning from the justices. Verrilli presented the federal government's position that there is no fundamental federalism problem with DOMA, instead asking the court to strike down the law based on equal protection grounds, but the justices proceeded to tear apart Verrilli's federalism contention. Chief Justice Roberts asked whether it would be constitutional for Congress to pass a law that explicitly extended federal marital benefits to same-sex couples, and he seemed taken aback by Verrilli's answer that such a law would be admissible. Justice Kennedy asked whether Verrilli was saying that Congress could dictate a definition of marriage for the states, telling the solicitor general that the court didn't even need to address the equal protection question if the law was an unconstitutional exercise of federal power.

Justice Alito brought up the issue of gay soldiers injured in the line of action. Assume, he said, that there are three soldiers injured, all of whom are in committed relationships. One is married, another is in a domestic partnership and the third has neither. Should only the first one's spouse be allowed to visit him in the hospital? Verrilli kept to his argument, saying that the question in the DOMA case was the problem of equal protection.

Chief Justice Roberts pressed Verrilli on whether a lack of DOMA in 1996 would have meant that when one state extended equal marriage rights to same-sex couples, all the other states would have had to follow suit. Verrilli responded that the federal government should have continued its policy of deferring to the states and said that an interest in uniformity cannot save the law. The chief justice asked whether that meant that all the legislators who voted for DOMA, and Bill Clinton, the president who signed it into law, were motivated by animus. Verrilli said that that was not necessarily the case, but then he said pointedly that "Section 3 is discrimination," and that singling out gays and lesbians for disfavor does not comport with the ideals of the U.S. Constitution.

Justices Sotomayor and Breyer pressed Verrilli on whether an invalidation of DOMA would mean that the court would also have to strike down state marriage bans. In response, Verrilli said that states could make their own rationales in favor of their laws for the courts to determine, but that the federal government's rationale for DOMA clearly fails to pass muster.

Last up was Roberta Kaplan, representing Edie Windsor. Kaplan was asked many of the same questions that were put to Verrilli, but in response to a question from Justice Alito as to what would happen without DOMA if a same-sex couple married in one state and then moved to another without marriage equality and challenged that state's marriage laws, Kaplan said that the courts would need to consider the state's reasons for limiting marriage to opposite-sex couples. Regardless, though, she argued, no compelling argument can (or has) been made to explain why the federal government should treat same-sex couples differently.

Justice Breyer asked if DOMA was simply a decision by Congress to "stay out" of the marriage equality issue, but Kaplan disavowed this idea, saying that DOMA in no way stayed out of the question, instead setting up a legal scheme that would eventually punish states that extended equal marriage rights to same-sex couples. In response to the same question about pro-DOMA legislators being motivated by animus (asked by Roberts as he had asked Verrilli), Kaplan said, "I think times can blind." Since then, she argued, there has been a sea change in the public understanding of gay and lesbian individuals and their relationships.

Chief Justice Roberts made a brief nod to the question of whether gays are a politically powerful class (an important element of the court's consideration of which level of scrutiny it should employ to review DOMA), saying that "political figures are falling over themselves to endorse [Kaplan's] side of the case." Kaplan responded that gays and lesbians have been uniquely discriminated against, and that they are currently less powerful than women were when the Supreme Court decided gender was a class that merited heightened scrutiny.

In his final rebuttal Clement pointed out Verrilli's position that the federal government sees no federalism problem inherent in DOMA. He again underscored the importance of a uniform federal definition of marriage and said that the "sea change" to which Kaplan referred was occurring because of the democratic process -- a process, he told the justices, that the court should not interfere with.

What Does It All Mean? The Bottom Line

Because of the justices' skepticism regarding Clement's arguments in favor of BLAG, it seems quite likely that there are at least five votes on the court to invalidate DOMA, especially if such a decision were based on issues of federalism rather than on an equal protection question. Based on today's arguments, it seems possible that Chief Justice Roberts would join such an opinion striking down the law, and that Justice Kennedy would rather rule on federalism grounds than on equal protection grounds if he can. Justice Alito's questions were less clear but also seemed to open the door to the idea that he could rule against the law as well.

The gateway question, however, is whether the court believes that BLAG has standing to defend DOMA, or whether the federal government could appeal a decision it agreed with. On the first count it seems that there are not five votes on the court to grant BLAG standing. But the court's four liberals, as well as Justice Kennedy, do seem to lean toward a decision that the federal government's appeal was proper and that the law could be considered on the merits.

Of course, we'll have to wait a few months to find out. A final decision in both cases should come by the end of June and could come even sooner. Until then, gay and lesbian Americans' rights to marriage and to federal benefits are in the hands of the justices.