Final update: 2:19 pm

Analysis

If the Supreme Court can find its way through a dense procedural thicket, and confront the constitutionality of the federal law that defined marriage as limited to a man and a woman, that law may be gone, after a seventeen-year existence. That was the overriding impression after just under two hours of argument Wednesday on the fate of the Defense of Marriage Act.

That would happen, it appeared, primarily because Justice Anthony M. Kennedy seemed persuaded that the federal law intruded too deeply into the power of the states to regulate marriage, and that the federal definition cannot prevail. The only barrier to such a ruling, it appeared, was the chance — an outside one, though — that the Court majority might conclude that there is no live case before it at this point.

After a sometimes bewilderingly complex first hour, discussing the Court’s power to decide the case of United States v. Windsor (12-307), the Court moved on to explore DOMA’s constitutionality. And one of the most talented lawyers appearing these days before the Court — Washington attorney Paul D. Clement — faced fervent opposition to his defense of DOMA from enough members of the Court to make the difference. He was there on behalf of the Republican leaders of the House (as majority members of the House’s Bipartisan Legal Advisory Group), defending the law because the Obama administration has stopped doing so.

Justice Kennedy told Clement that there was “a real risk” that DOMA would interfere with the traditional authority of states to regulate marriage. Kennedy also seemed troubled about the sweeping breadth of DOMA’s Section 3, noting that its ban on benefits to already married same-sex couples under 1,100 laws and programs would mean that the federal government was “intertwined with citizens’ daily lives.” He questioned Congress’s very authority to pass such a broad law.

Moreover, Kennedy questioned Clement’s most basic argument — that Congress was only reaching for uniformity, so that federal agencies would not have to sort out who was or was not married legally in deciding who could qualify for federal marital benefits, because some states were on the verge of recognizing same-sex marriage.

Along with sharply negative comments about DOMA by the Court’s four more liberal members, Kennedy’s stance could put the law on the edge of constitutional extinction. But, if the Court were to do that based on states’ rights premises, the final ruling might not say much at all about whether same-sex couples were any closer to gaining an equal right to marry under the Constitution.

There did not appear to be a majority of Justices willing to strike down the 1996 law based on the argument that the Obama administration and gay rights advocates have been pressing: that is, the law violates the Fifth Amendment guarantee of legal equality in general.

If the House GOP leaders’ lawyer had trouble on Wednesday, so did the federal government’s lawyer, Solicitor General Donald B. Verrilli, Jr., who was pushing for a wide-ranging ruling that might have the potential to outlaw any ban on same-sex marriage. It was not apparent that Verrilli was making much headway with his argument that any law that treats gays and lesbians less favorably, because of their sexual identity, should have to satisfy a stricter constitutional test.

Justice Kennedy, for example, commented to Verrilli at one point: “You are insisting that we get to a very fundamental question about equal protection, but we don’t do that unless we assume the law is valid otherwise to begin with. And we are asking is it valid otherwise.” He went on to press the government lawyer on what interest Congress might have in enacting DOMA’s definition of marriage.

The Court, although it has been dealing with gay rights cases for years, has never spelled out a specific constitutional standard for judging laws that allegedly discriminate based on sexual orientation. The indications on Wednesday were that the DOMA case might be decided without supplying such a standard, since a decision based on interference with states’ prerogatives would not require the creation of a test based on equality principles.

There was a third lawyer in the case to discuss the constitutional issue, New York City attorney Roberta A. Kaplan, representing the New York City woman who had successfully challenged DOMA in this case — Edith Schlain Windsor, an eighty-three-year-old widow of a same-sex marriage, who sat in the second row of the audience to watch the Court deal with her case. Kaplan seemingly missed several opportunities, in answering some of the conservative Justices’ tough questioning, to the apparent consternation of gay rights lawyers in the attorney section.

Argument in the DOMA case came on back-to-back days with the Court’s review of the constitutionality of California’s Proposition 8, a flat ban on same-sex marriage in that state. While both cases involve technical constitutional questions about the Court’s authority to decide either of them, it appeared on Wednesday that the DOMA case was less likely than the other to be resolved without a ruling on the fate of the law at issue.

The Court explored its authority to decide the DOMA case in the first hour of Wednesday’s session, probing that issue with Clement for the House leaders, along with a Court-appointed adviser — Harvard professor Vicki C. Jackson — named to argue against a decision on DOMA’s merits, and an Obama administration attorney, Deputy Solicitor General Sri Srinivasan.

In order to rule on DOMA’s validity, the Court has to be persuaded that it has a genuine controversy before it — that is a real legal dispute between opposing parties, each of whom has a direct interest in the outcome. Whether it has that was the issue, with Professor Jackson arguing that the administration wants the same thing as Ms. Windsor — the nullification of DOMA Section 3 — so the Court has no jurisdiction over the government’s appeal, and arguing that the House GOP leaders have no direct harm they can claim even if DOMA is nullified.

The Justices seemed somewhat at odds over whether they do have the authority to go ahead with this case, so the possibility remained that the Court in the end could choose not to decide the merits of the law’s validity. That portion of the argument focused on just who in Congress, if anyone, could be in court to defend a federal law when the executive branch chose not to do so.

Justice Kennedy seemed to be leaning toward finding that there did exist a live controversy — between the government and Ms. Windsor, over whether she is entitled to a refund of an estate tax she paid on her late spouse’s estate. But Chief Justice John G. Roberts, Jr., commented that the Court had never ruled on a case in which all of the parties involved agreed — as he suggested would be the case with the government and Ms. Windsor sharing their opposition to DOMA.

It did not appear, however, that Clement had succeeded in contending that the House GOP leaders (BLAG) had a full right to be in court to defend DOMA in the absence of a defense by the government.

Recommended Citation: Lyle Denniston, Argument recap: DOMA is in trouble (FINAL UPDATE), SCOTUSblog (Mar. 27, 2013, 1:28 PM), https://www.scotusblog.com/2013/03/argument-recap-doma-is-in-trouble/