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Over the last couple of days many around the country have been focused on the arguments on the constitutionality of Proposition 8 (Prop 8) and the Defense of Marriage Act (DOMA), taking place in the Supreme Court. It doesn’t make sense in this forum to give a summary or even a major analysis. There are good analyses out there. (I found Mother Jones and SCOTUSblog helpful), but there are some things that I want to highlight in reference to the arguments we have seen this week.
I feel it necessary to preach caution in predicting which way the Court will rule in these matters. Judges often probe the side they agree with, as they look to address the final questions they may have about the way in which they are leaning. Furthermore, the deliberative process the justices will go through after the argument is shielded from us is more important than the oral argument itself. I am surprised that people are so quick to jump to conclusions based on oral argument when we just went through this with the Affordable Care Act. After that oral argument, everyone was sure it would be overturned, and we ended up with a 5-4 decision to uphold the legislation. This isn’t to say that the prognosticators will be wrong; I’m just saying we should be careful.
To say Charles Cooper (who argued in support of Prop 8) didn’t serve himself well would be an understatement. Of course, part of the problem is that he had bad circumstances and a bad record from the state trial to deal with. First, I do think this case would have been different if the right to marry had not been extended to same-sex couples and then taken away by Prop 8. Second, their case fell apart in state court which is what led to Prop 8 being overturned in the first place. You don’t get to reargue the case on appeal, and that was tough for him. So he ended up having to make a lot of really bad arguments. I didn’t think his standing argument went well; he couldn’t really talk about what injury would occur if same-sex marriage was allowed, and his argument about procreation and marriage got destroyed by Justice Kagan. Despite a poor showing he might’ve done enough to keep the Court from ruling for all 50 states, so that is a victory of sorts for his clients.
The most legally fascinating exchange of the first day for me came between Olson and Justice Scalia. Justice Scalia asked a strange question - when did gay marriage become unconstitutional, which he said he needed to know in order to adjudicate the case. Olson stumbled around before coming to the answer that Justice Scalia deserved, saying that the Court has never asked that question before, has never phrased it that way, and has more than enough to rule on the case before it today.
Surely Justice Scalia knows that the Supreme Court is the arbiter of what is constitutional and unconstitutional, and so nothing is unconstitutional until the Court says so. At that point, I would submit that we then deem the action in question to have always been unconstitutional and that it will be unconstitutional, that is until the Court changes its mind. Segregation is a good example of this principle. In 1896, when the Court ruled separate but equal was constitutional in Plessy v. Ferguson, it was constitutional. In 1954, when the Court overruled Plessy, segregation was unconstitutional and now we consider that case to have been wrongly decided. We now think that it was always unconstitutional to segregate, regardless of the fact that it was actually constitutional for over 50 years. It is foolish to insinuate that the issues of this case rest on whether you can determine when banning same-sex marriage became unconstitutional. The reasons the parties are before the Court is because they don’t know whether it is unconstitutional or not. If they knew, Justice Scalia wouldn’t have a job.
There were several things that conspired to make the oral arguments in the Supreme Court on Wednesday over the Defense of Marriage Act (DOMA) seem a lot less interesting than the Prop 8 arguments that took place on Tuesday. First, it was the second day of hearings pertaining to the issue of gay marriage, and the second day is never as interesting as the first. Second, there was a huge and overbearingly technical argument about the standing of the Congress to defend laws that it passed. This argument took up a good section of the oral argument and it can be difficult for a layperson to follow the train of the argument. Despite these issues, I think there are at least a few interesting points that can be gleaned from what took place.
Paul Clement, lawyer for the House of Representatives’ Bipartisan Legal Advisory Group, did as masterful a job as possible presenting the case for DOMA. He has a significant standing problem. The House is defending the law here because the President’s administration actually supports the idea that this section of DOMA is unconstitutional. It is incredibly difficult to determine exactly how the House of Representatives is harmed by having its law declared unconstitutional. Clement’s posturing of the case was novel and well done in my opinion. He framed the case as this question, “[D]oes the federal government have the same flexibility [as states do to define marriage as it sees fit], or must the federal government simply borrow the terms of state law?” Although I don’t agree with him, he was certainly compelling in arguing that the government sought uniformity in how it was going to parcel out benefits and decided to hold in place the traditional definition of marriage in light of a society that seemed on the brink of fast-paced change in 1996 when they enacted DOMA.
There were some things that Clement had a tough time handling despite his strong argument. In one of the most interesting moments of the hearing, Justice Kagan read one of the rationales given in the House Report on the passage of DOMA: “Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.” Clement, to his credit, gave the only response he could give – that this reason was amongst the reasons cited, but it was not a reason that they were using in support of their arguments today. The other problem Clement had was in attempting to argue that the federal benefits of marriage did not have an effect on the conception of marriage at the state level. Justice Ginsburg described the difference the government currently promotes as full marriage on one hand and “skim milk” marriage on the other. Justice Kennedy referred to the 1100 statutes that the federal definition of marriage in DOMA effects, and how those statutes touch every area of life.
I did not feel that Solicitor General Verrilli and Ms. Roberta Kaplan, who represented the government and the original petitioner in this case, did as good a job in presenting their case to the justices. They both attempted to skirt around the federalism question apparent in the case. Many justices asked the question this way – would the government violate the issues of federalism (separation of powers between the federal and state levels of government) if it redefined marriage in DOMA to include same-sex marriage? Verrilli eventually said it was not a federalism issue, and Ms. Kaplan never adequately answered the question. For the record, I think the answer to that question is no, with the addendum that the question is not germane here because, I would argue that, the government has to conform to each state’s definition of marriage at the very least. Though Ms. Kaplan focused on it some, I think both lawyers did not stress enough what I think is the key systemic issue in this case – civil marriage only exists because states say so. When the federal government defines marriage, it is defining a state institution and not a federal one. So states that have already allowed gay marriage should be able to tell the federal government, “These are the people who we as the state have decided should be allowed to have these benefits.” I don’t think the government is allowed to proactively interfere in something it did not create, and then tell the states who should and should not be under that definition. This contradiction is what creates the equal protection problem. If we believe in equality under the law, I don’t think we can say to a legally married couple that they are not able to receive federal benefits because the government does not consider them married when the government does not actually marry anyone.
As I said on the Spectrum podcast last week, I think that the Court will overturn DOMA and will not overturn the decision of the 9th Cir. in the Prop 8 case. But one of the more interesting aspects of the gay marriage debate that the arguments of the last two days have highlighted is how different the discussion of marriage is from the religious to the legal realm. Within the religious bubble, the discussion revolves around proof texts and God’s design for humanity and what is “natural” and what is not. While those discussions are occasionally useful, they have absolutely no bearing on marriage as a civil right. Religion was not mentioned in any argument and neither should it have been. The issues of the extension of civil marriage are not issues of theology or spirituality. The issues are foundational concerns about what makes America what it is, like equality and fairness. As Justice Ginsburg said, "A prime part of the history of our Constitution is the story of the extension of constitutional rights to people once ignored or excluded." I think this is a principle we can all support, regardless of our religious beliefs.