DOMA’s Doom Appears Likely

Jim Burroway

March 27th, 2013

In contrast to yesterday’s Prop 8 hearing, where the Supreme Court looked like it was desperately seeking a way to avoid making a decision, today’s hearing for the Defense of Marriage Act was more focused, directly, or indirectly, on the statutes constitutionality itself. Like yesterday, Justices first tacked the issue of standing — should the House Bipartisan Legal Advisory Group (BLAG) be defending the statute instead of the Justice Department — but those arguments, it seemed to me, also centered on DOMA’s constitutionality:

Conservative justices sharply questioned why the Justice Department is refusing to defend DOMA as unconstitutional but yet enforcing the law and placing the gay-marriage question before the Supreme Court. Justices also questioned whether the case belonged before the court at all.

Chief Justice John Roberts told attorney Sri Srinivasan, the principal deputy solicitor general, that the government’s actions were “unprecedented.” To agree with a lower court ruling finding DOMA unconstitutional but yet seeking the Supreme Court to weigh in while it enforces the law is “has never been done before,” he said.

Justice Antonin Scalia cited the longstanding Office of Legal Counsel memorandum that requires the Justice Department to defend laws passed by Congress, except in rare circumstances. He called it a “new world” where Attorney General Eric Holder can decide a law is unconstitutional, but yet not so unconstitutional that the executive branch won’t enforce the law.

…Justice Anthony Kennedy cited the controversial and “questionable” practice of presidential signing statements as an example. He said if the president doesn’t think a law is constitutional then he shouldn’t sign it. And said the same principle perhaps applied in this case — meaning if the president believes the law is unconstitutional, he shouldn’t enforce it.

…Chief Justice Roberts repeatedly expressed irritation at the Obama administration, telling Ms. Jackson, the court-appointed lawyer, and without specifically mentioning the administration, that perhaps the government should have the “courage” to execute the law based on the constitutionality rather instead of shifting the responsibility to the Supreme Court to make a decision.

Justices set aside questions of standing for the second hour, which was set aside to examine the constitutionality of DOMA itself:

Justice Kennedy, however, jumped in with federalism concerns, questioning whether the federal government was intruding on the states’ territory. With there being so many different federal laws, the federal government is intertwined with citizens’ day-to-day lives, he said. Because of this, DOMA runs the risk of running into conflict with the states’ role in defining marriage, he said.

…Justice Ginsburg again says the denial of federal benefits to same-sex couples pervades every area of life. DOMA, she said, diminished same-sex marriages to “skim-milk” marriages. Justice Elena Kagan follows a short time later saying DOMA did things the federal government hadn’t done before, and she said the law raised red flags.

…Justice Kagan said the House report that accompanied the legislation suggested at least some lawmakers had improper motives to enacting the law, such as for the purposes of voicing disapproval of homosexuality.  Mr. Clement said the high court has never invalidated a statute on that basis.

The issue of federalism and the Tenth Amendment limiting the powers of the Federal Government, arguments which have been mostly lacking in the case against DOMA, appear nevertheless to be the handle that the Justices will likely grasp rather than the Equal Protection clause:

But Chief Justice John Roberts immediately changes the subject to the more abstract question of federalism: If, as the administration argues, the federal government can’t refuse to recognize state-authorized gay marriages, can it redefine marriage to favor same-sex couples? That is, to define committed same-sex couples as married for federal purposes even if a state doesn’t recognize them?

Justice Kennedy also is interested in this issue: Does the federal government using its own definition of marriage raise any federalism issues by stepping on the states’ traditional prerogative of family law?

…Justice Kennedy, who has championed states’ rights at the court, says there’s no need to reach the equal-protection issue if the federal government had no authority to supersede state marriage laws in the first place.

 Josh Marhsall at Talking Points Memo notes the significance of the states rights arguments against DOMA:

If that’s the case, it would probably be the first time that “states rights” was ever used to vindicate any actual person or group’s rights. It’s almost always been bulwark behind which states hide to deprive citizens of rights. There are likely some marginal examples of the contrary. But the big verdict of history is unmistakable. It would be an ironic first.


March 27th, 2013

So, was Olson wrong about Kennedy then? I mean yes he may well vote down Prop 8, indirectly due to standing or directly, but only in California. He may vote down DOMA but in a concurrent opinion, instead of finally applying heightened scrutiny.

Anyway, repealing DOMA but not SSM bans nationwide will be a nightmare to resolve in Congress…..

Jim Burroway

March 27th, 2013

…repealing DOMA but not SSM bans nationwide will be a nightmare to resolve in Congress…..

Actually, I don’t see how it should bother Congress one bit. If a couple has a marraige license, then they’re married. That’s it. It’s the states which grant licenses. Congress doesn’t have to resolve a thing.

It was the same thing when some states banned interracial marriages and others didn’t. The Federal government didnt care. Just as long as there was a marriage license, they were married.

But as with the interracial marriage issue (and, equal protection issues aside), the problem is then with the states, or more specifically, with same-sex couples in states which do not provide marriage equality. I, as a resident of Arizona which does not recognize same-sex marriage, could go to Washington State and get married, and because I have a marriage license, the federal government would recognize it once Section 3 of DOMA is declared unconstutional.

But because of Section 2 of DOMA, which allows states to ignore other states’ marriage licenses of same-sex couples a– and only for this one issue — Arizona would not recognize my marriage.

Which means that for me, the whole tax situation will reverse itself. I would file a Federal Tax return as married, but a state tax return as a single. This is the reverse of states which allow same-sex couples to file as married but the IRS requires them to file as single.

Mark F.

March 27th, 2013

Well, generally states have recognized almost all marriages performed in other states, although they are not compelled to do so. So, we may see at least a few states recognizing same sex marriages performed in other states, even though they may be illegal there.

We currently see a state by state patchwork re divorce laws, which can make things complicated if people move from one place to another and then try to split up. Nevada has a 30 day residency requirement to file for a divorce, for example, but other states have longer requirements.


March 27th, 2013

You have to distinguish between states recognizing other marriages and the federal government doing so. Logically of course, states shouldn’t be able to ignore legal contracts from other states. But given the messy 18th century constitution the US has, they can. And because the Supreme Court carved a hole in the Full Faith and Credit Clause by creating a public policy exemption. Section 2 is really entirely redundant.

But the federal government usually recognizes any marriage. Even if it’s not recognized where a couples lives. I think there are only a few laws that explicitly defer to the state of residence. Though that doesn’t make any sense either.


March 27th, 2013

Sheer speculation on DOMA. Will have to wait until the verdict is rendered.


March 28th, 2013

The whole thing about “enforcement” vs. “defense” is really weird. As I’ve always understood it, the executive is bound to enforce the law — that’s what it does, basically. I’ve never run across anything saying that it’s required to defend laws in court,, and this is hardly something new on the part of the Obama administration.

Although I have to say, reading these transcripts is a good education on how large questions are resolved by obsessing about minutiae. Or not, in the case of Prop 8.


March 28th, 2013

In the early days of the US, they weren’t necessarily bound to enforce the law either. There were Presidents who made sure that some laws weren’t applied or pardoned people convicted by them. The Seditions Act for example. But the interpretation of the law has changed since then I guess.

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