When the Supreme Court granted review in United States v. Windsor, the challenge to the constitutionality of the federal Defense of Marriage Act, last December, it asked the United States, Edith Windsor, and the Republican House leaders defending the law to weigh in on a second issue: whether the Court could hear the challenge at all. It even appointed a “friend of the court,” Harvard law professor Vicki Jackson, to argue that it cannot.

Under any circumstances, the Court’s request for briefing on this question would not be something to take lightly. But after yesterday’s argument in the Proposition 8 case, when it became apparent that there might well be five votes to hold that the sponsors of the California initiative lacked a legal right to defend the initiative in court, all eyes focused today even more closely on the first fifty minutes of oral argument, which the Court had set aside to consider the question of its authority to hear the case. During the fifty-plus minutes of oral argument, several Justices did indeed express doubts about at least one of the propositions before them: whether the Court lacked authority to hear the case because the United States – which had asked the Court to review the lower court’s decision striking down DOMA – agreed with the lower court that DOMA is unconstitutional; and whether the Bipartisan Legal Advisory Group, representing the House Republican leaders, did not have the legal right (known as “standing”) to be in the case. But unlike yesterday, it did not look like there might be five votes on either proposition to keep the Court from moving on to the merits of the DOMA challenge.

When the Court did so, the Court seemed once again to divide along traditional ideological lines. The Court’s four liberal Justices – Ginsburg, Breyer, Sotomayor, and Kagan – appeared ready to strike down DOMA. On the other end of the ideological spectrum, the Chief Justice and Justice Scalia said nothing to suggest that they would do anything other than vote to uphold the law; Justice Alito asked at least one question that suggested some skepticism about DOMA’s constitutionality, but for the most part he too seemed a likely vote to uphold the law. (Justice Thomas did not ask any questions, but we have no reason to believe that he would split from the other conservative Justices in this case.) That left, as it so often does, Justice Anthony Kennedy as the probable key vote in the case. And he seemed more sympathetic to the DOMA challengers today – but not necessarily willing to strike down the statute for the same reason that the four liberal Justices would.

When Paul Clement, representing the House Republican leaders, kicked off the oral argument on the constitutionality of DOMA, he began by emphasizing that states have the prerogative to define marriage for themselves; when – as in this case – the federal government does so only for purposes of federal law, it enjoys that same privilege. What’s more, he added, Congress had done so in DOMA to guarantee that federal law would treat marriages uniformly in all states. These arguments drew questions from all four of the Court’s liberal Justices. Justice Ruth Bader Ginsburg, for example, disputed what she regarded as Clement’s efforts to minimize DOMA’s impact: she complained that DOMA affected “every aspect of life” for same-sex couples and “really diminish[es]” what the state has acknowledged as a marriage. And Justice Elena Kagan pressed Clement on whether, when it passed DOMA, Congress in reality might have been less concerned about uniformity and more concerned with expressing its “moral disapproval” of gays and lesbians.

But the most important skeptic on DOMA was Justice Kennedy. And although he too seemed doubtful that uniformity was Congress’s primary goal in passing DOMA, he was even more concerned about whether Congress, under the Constitution, had the power to pass DOMA at all, given that marriage is something that the states have traditionally regulated. Along those lines, he told Clement that through DOMA the federal government is intertwined with the everyday lives of Americans, and at a “real risk” of running into a conflict with the states’ power to define marriage. Later on, he put it more bluntly, telling Clement that the question in the case is “whether the federal government has the authority to regulate marriages.”

Clement was followed by Solicitor General Don Verrilli, who quickly found himself between the proverbial rock and a hard place. On the one hand, Justice Kennedy’s suggestion that Congress did not have the power to pass DOMA would give the government a path to victory. On the other hand, the Solicitor General of the United States rarely (if ever) wants to appear before the Supreme Court and concede that the federal government should have fewer powers. So Verrilli denied that there was any problem in principle with Congress defining marriage under federal law, and he reiterated that the real constitutional problem with DOMA is that it violates the Constitution’s guarantee of equal treatment by treating married same-sex couples differently from married opposite-sex couples. But the Chief Justice and Justices Scalia and Alito seemed dubious about that argument. Justice Alito pressed Verrilli to explain whether, under his rationale, a same-sex couple who are married under the laws of the state where they live would be treated differently than either a same-sex couple that has a domestic partnership, but cannot marry, in their home state or a same-sex couple whose state does not offer either domestic partnerships or marriage. Or, asked Justice Scalia, would the federal government treat all three couples the same, regardless of the state laws on marriage? And the Chief Justice suggested that, on Verrilli’s argument, even if Congress had intended “marriage” in the federal laws to refer to a marriage between a man and a woman, “[a]s soon as one state adopted same-sex marriage, the definition of marriage throughout the federal code had to change?”

After Verrilli’s fifteen minutes at the lectern, Roberta Kaplan had fifteen minutes to argue on behalf of Edith Windsor, the eighty-three-year-old widow who filed this challenge to DOMA. Like Verrilli before her, she did not challenge Congress’s power to pass DOMA and instead tried to focus on what she characterized as the discriminatory purposes and effects of DOMA. Some of the conservative Justices pushed back against that argument, including the Chief Justice, who seized on Kaplan’s comments about a “sea change” in attitudes towards gays and lesbians to ask her whether there is a “politically powerful” lobby “supporting the enactment of same-sex marriage in different states.” That point could both undermine the challengers’ argument that courts should subject laws such as DOMA to a close review because gays and lesbians are a group that needs special protection and strengthen the House Republican leaders’ argument that issues relating to same-sex marriage are best decided by the political process, rather than the courts.

Even if Justice Kennedy ultimately agrees with the four more liberal Justices that DOMA should be struck down (which still remains an “if,” particularly when none of the four necessarily seemed inclined to agree with him that Congress lacked the power to enact the law), both opponents and supporters of same-sex marriage will be parsing the decision closely. A decision holding that DOMA violates the Constitution because marriage is traditionally a matter for the states to regulate would have little if any impact beyond DOMA, because then the Court would not need to settle on a test to use to determine whether a law unconstitutionally discriminates against gays and lesbians – a test that could in turn be used in challenges to the constitutionality of state laws prohibiting same-sex marriage.

Of course, that result may never happen. At least five Justices could conclude that the Court lacks authority to consider the challenge at all, or at least five of them may agree that DOMA either does or does not unconstitutionally discriminate against gays and lesbians. Whatever happens, we’ll come back to cover it in Plain English.

[Disclaimer: Kevin Russell of the law firm Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, was among the counsel on an amicus brief filed by former senators in support of Edith Windsor in this case. However, I did not participate in that brief.]

Recommended Citation: Amy Howe, DOMA as a states’ rights problem? Today’s oral argument in Plain English, SCOTUSblog (Mar. 27, 2013, 3:20 PM), https://www.scotusblog.com/2013/03/doma-as-a-states-rights-problem-todays-oral-argument-in-plain-english/