Supreme Court hears arguments on Clinton-era statute as Roberts
questions Obama and the "courage of his convictions" for enforcing DOMA
while calling it invalid.
By Bridget Johnson
In an omen to both sides of the same-sex marriage debate that they
risk walking away with less than they want, arguments before the Supreme
Court went from yesterday’s debate on whether a state’s voters can
usurp what the federal government may deem a constitutional right to
today’s issue of whether the federal government can have a Defense of
Marriage Act if the business of marriage should be the prerogative of
the states.
“The question is whether or not the federal government under our
federalism scheme has the authority to regulate marriage,” said Justice
Anthony Kennedy, a potential swing vote in today’s case and in the
arguments against California’s Proposition 8 heard yesterday.
“What gives the federal government the right to be concerned at all
about what the definition of marriage is?” Justice Sonia Sotomayor
asked.
Nine states currently recognize gay marriage and 30 states have banned it via constitutional amendments.
United States v. Windsor is an appeal on a case brought by Edie
Windsor, who married her partner in Canada in 2007. When her partner
died in 2009, their home state of New York recognized same-sex marriages
performed elsewhere. When Windsor inherited her spouse’s estate, she
was forced to pay $363,000 in taxes on the inheritance because her
marriage was not recognized on a federal level.
Because of the core tax issue, many felt the conservatives on the
court would be more sympathetic to the case despite the highly charged
facet of gay marriage.
“Suppose we look just at the estate tax provision that’s an issue in
this case, which provides specially favorable treatment to a married
couple, as opposed to any other individual or economic unit. What was
the purpose of that? Was the purpose of that really to foster
traditional marriage?” asked Justice Samuel Alito. “Or was Congress just
looking for a convenient category to capture households that function
as a unified economic unit?”
Attorney Paul Clement, a former solicitor general who led the
challenge to ObamaCare last year, argued that Congress passed DOMA in
1996 faced with “the prospect that one state, through its judiciary,
will adopt same-sex marriage and then, by operation of the full faith
and credit law, that will apply to any — any couple that wants to go
there.”
“And so Congress is worried that people are going to go there, go
back to their home jurisdictions, insist on the recognition in their
home jurisdictions of their same-sex marriage in Hawaii, and then the
federal government will borrow that definition, and, therefore, by the
operation of one state’s state judiciary, same-sex marriage is basically
going to be recognized throughout the country,” Clement said.
“And what Congress says is, wait a minute. Let’s take a timeout here.
This is a redefinition of an age-old institution. Let’s take a more
cautious approach, where every sovereign gets to do this for
themselves.”
“You’re saying, we can create this special category — men and women —
because the states have an interest in traditional marriage that
they’re trying to protect,” Sotomayor interjected. “How do you get the
federal government to have the right to create categories of that type
based on an interest that’s not there, but based on an interest that
belongs to the states?”
“One way to stay out of the debate and let just the states develop
this and let the democratic process deal with this is to just say, look,
we’re going to stick with what we’ve always had, which is traditional
definition,” Clement argued. “We’re not going to create a regime that
gives people an incentive and point to federal law and say, well,
another reason you should have same-sex marriage is because then you’ll
get a state tax deduction.”
“It’s not as though, well, there’s this little federal sphere and
it’s only a tax question,” said Justice Ruth Bader Ginsburg. “It’s as
Justice Kennedy said, 1,100 statutes, and it affects every area of life.
And so you’re really diminishing what the state has said is marriage.”
Justice Elena Kagan noted that a House report said Congress “decided
to reflect and honor a collective moral judgment and to express moral
disapproval of homosexuality” in its passage of DOMA.
“Does the House report say that? Of course the House Report says
that. And if that’s enough to invalidate the statute, then you should
invalidate the statute,” Clement responded. “…The House report says some
things that we are not — we’ve never invoked in trying to defend the
statute. But the House report says other things, like Congress was
trying to promote democratic self-governance.”
Solicitor General Donald Verrilli Jr., under questioning from Chief
Justice John Roberts, said he didn’t think there would be a problem with
federalism if Congress today passed a law recognizing same-sex
marriage, because “that wouldn’t raise an equal protection problem like
this statute does.”
“So just to be clear, you don’t think there’s a federalism problem with what Congress has done in DOMA?” Roberts asked.
“No, we don’t, Mr. Chief Justice. The question is, what is the
constitutionality for equal protection purposes? And because it’s
unconstitutional and it’s embedded into numerous federal statutes, those
statutes will have an unconstitutional effect,” Verrilli replied.
“But you’re insisting that we get to a very fundamental question of
equal protection, but we don’t do that unless we assume that the law is
valid otherwise to begin with. And we’re asking, is it valid otherwise?
What is the federal interest in enacting this statute? And is it a valid
federal interest assuming — before we get to the equal protection
analysis?” Kennedy said.
“We think whatever the outer bounds of the federal government’s
authority — and there certainly are outer bounds — would be, apart from
the equal protection violation, we don’t think that section three, apart
from equal protection analysis, raises a federalism problem,” Verrilli
said. “But we do think the federalism analysis does play into the equal
protection analysis, because the federal government is not the 51st
state.”
Roberts questioned President Obama for continuing to enforce DOMA’s
provisions even while proclaiming that it’s unconstitutional.
“If he has made a determination that executing the law by enforcing
the terms is unconstitutional, I don’t see why he doesn’t have the
courage of his convictions and execute not only the statute, but do it
consistent with his view of the Constitution, rather than saying, ‘Oh,
we’ll wait ’til the Supreme Court tells us we have no choice,’” the
chief justice said.
White House spokesman Josh Earnest said in response at the daily
press briefing that the administration will enforce “laws that we
disagree with,” though Obama had decided not to defend DOMA in court.
“You know, in terms of what our legal posture is for these things, I
would refer you to the Department of Justice. They have done the legal
analysis required to reach the conclusion that it is unconstitutional.
They also are the ones that are responsible for enforcing these laws,”
Earnest added.
Because of the tie to Congress, some lawmakers had their interest piqued beyond the state ballot case heard a day earlier.
House Minority Leader Nancy Pelosi (D-Calif.) attended the day’s
arguments. “When I first became whip and after that, one of the first
questions, shall we say, less than friendly journalists would ask me on
their show or so would be, do you support gay marriage? And of course I
would always say, I support gay marriage,” she told reporters afterward.
“So, now it’s a badge of honor for a lot of people but, for a long
time, it was something that we knew was inevitable.”
“You know, from our beautiful place in San Francisco, the city of St.
Francis, we knew it was inevitable that all of this would happen. It
was inconceivable to others that it would,” Pelosi continued. “And it
was our job to use whatever influence we could have to shorten the
distance between the inevitable and the inconceivable.”
D.C. Del. Eleanor Holmes Norton said the District’s marriage rate
doubled the first year after same-sex marriage passed here in 2009.
“The District, along with nine states, has been a pioneering
jurisdiction in expanding civil rights to gay residents,” said
Norton. ”…If DOMA is struck down, D.C. residents and others who were
married here will be among the first to benefit and may benefit
disproportionately in part because of the large number of residents who
are federal employees, whose spouses would benefit from federal employee
benefits, including health care.”
Hill Republicans pretty much ignored the day’s proceedings, though,
with House Speaker John Boehner’s (R-Ohio) office pressuring Obama yet
again to approve the Keystone XL pipeline and counting down to the
president’s two-months-late budget due on April 8.
SoRo: According to the uber-Progressive website, Garlic & Grass, A Grassroots Journal of America's Political Soul:
"Pelosi refused to support gay marriage and kept silent for over a month
after gay marriages began in San Francisco. Then, when it was safe, once
the California Supreme Court had halted the marriages, she emerged and
said that she had in fact supported gay marriage all along."
No comments:
Post a Comment