Why did Congress pass the Defense of Marriage Act in 1996? Before I went to the Supreme Court on Wednesday morning, I thought the answer was obvious: to prevent gay couples from receiving federal marriage benefits, as a signal of condemnation or at least displeasure.
So it was a surprise to hear Paul Clement, defending DOMA on behalf of House Republicans, stay as far from that rationale as possible. Clement’s central argument was this: Congress was merely striving for “uniformity,” ensuring that gay couples would be treated the same throughout the country. “We want to treat same-sex couples in New York the same as in Oklahoma,” Clement said. It was a thin, implausible reed to cling to. And it won’t support five votes for upholding DOMA’s definition of marriage as the union of a man and a woman.
“It’s not really uniformity,” Justice Anthony Kennedy said in response to Clement. Kennedy, the crucial swing voter, framed the case differently: “The question is whether or not the federal government under a federalism system has the authority to regulate marriage.”
That’s the genius of this particular court challenge, United States v. Windsor, as an incremental step toward federal rights for gay couples. The case aligns state sovereignty (a cause close to Kennedy’s heart) with gay couples’ sovereignty over their lives (ditto). On the table today was not a broad proclamation of gay marriage throughout the land—the grander vision that animated, but also could sink, the challenge to California’s ban, which was argued Tuesday. Today, the court focused only on whether Congress has the power to define marriage for the purpose of denying federal benefits to gay couples in the nine states and the District of Columbia that now fully recognize their marriages. Can Congress exclude gay couples whom states have included?
Justice Ruth Bader Ginsburg had the laugh line of the day when she scolded DOMA for creating “two kinds of marriage, full marriage and the skim-milk marriage.” It was easy to see which one you’d want in your coffee. But Clement’s diciest moment came when Justice Elena Kagan faced him down. She said that “for the most part and historically, the only uniformity that the federal government has pursued” is uniform recognition of marriages recognized by the states. Federal law has followed state law. “This statute does something that’s really never been done before,” Kagan continued, and the question is whether “that sends up a pretty red flag.”
Then she hoisted that flag for all to see. “I’m going to quote from the House report here: ‘Congress decided to reflect and honor collective moral judgment and to express moral disapproval of homosexuality.’ ”
“Does the House report say that?” Clement asked, before catching himself: “Of course the House report says that. And if that’s enough to invalidate the statute, then you should invalidate the statute.” Maybe that’s the whole case right there.
Clement tried to bolster his argument about uniformity by giving an additional justification for passing DOMA: “We don’t want somebody, if they are going to be transferred in the military from West Point to Fort Sill in Oklahoma, to resist the transfer because they are going to lose some benefits.” He also tried to help DOMA by situating his insistence on uniformity in the context of state laws recognizing gay marriage as “a redefinition of an age-old institution.” He said Congress was merely trying not to give states an incentive to mess around with the old definition as they fell over themselves to make sure gay couples would receive federal benefits. Since 38 states have banned gay marriage, through legislation or state constitutional amendment, this doesn’t seem like the world we actually live in.
There were more flights from reality as Justice Antonin Scalia and Chief Justice John Roberts fought rear-guard actions. In the first half of the morning’s argument, the question was whether the case had come properly before the court. The plaintiff, Edie Windsor, had sued to challenge DOMA after her spouse, Thea Spyer, died. Windsor had to pay more than $360,000 in federal inheritance taxes that she wouldn’t have had to pay if she’d been married to a man. Along they way, the Obama administration stopped defending DOMA as constitutional but continued to enforce it. The government hasn’t given Windsor back her money. But given the government’s agreement with Windsor on the law, is that enough to get the case to court? And what about Clement’s representation of House members who wanted to defend DOMA—do they have standing to do that?
I don’t think the court will throw out the case because of these problems. “It seems to me there is injury here,” Kennedy said. That’s right: The loss of a lot of money is the kind of injury that lawsuits are designed to address. Still, the discussion gave Roberts a chance to shake his rhetorical fist at President Obama. “I don’t see why he doesn’t have the courage of his convictions here,” Roberts complained. He said Obama should execute DOMA “consistent with his view of the Constitution, rather than saying, ‘Oh, we’ll wait till the Supreme Court tells us we have to stop.’ ”
Later, when it was Roberta Kaplan’s turn to speak on behalf of Edie Windsor, Scalia and Roberts seized on her comment that “there has been this sea change between now and 1996,” the year DOMA passed. Kaplan said she was talking about Americans’ “understanding of gay people and their relationships.” But Roberts and Scalia tried to move her to different ground. “I suppose the sea change has a lot to do with the political force and effectiveness of the people representing, supporting your side of the cause?” Roberts asked. When Kaplan disagreed, he pressed, “You don’t doubt that the lobby supporting the enactment of same-sex marriage laws in different states is politically powerful, do you?” He added, “As far as I can tell, political figures are falling over themselves to endorse your side of the cause.”
Kaplan held her ground. She could see that Roberts was trying to prove that gay people are too powerful to count as the kind of group whose claims of discrimination merit “heightened scrutiny.” In sex discrimination cases, courts apply heightened scrutiny—the government has to have a good reason, not just any rational basis, to treat women and men differently. (In cases claiming discrimination on the basis of race, religion, or ethnicity, the standard is even higher, “strict scrutiny.”) If Edie Windsor’s effort to get back her inheritance taxes leads the Supreme Court to treat gay people as a class deserving of heightened scrutiny for the first time, she will have accomplished more than striking down part of DOMA. She’ll have given gay people a stronger means of fighting discrimination on the job and elsewhere. That’s what Roberts and Scalia are trying to head off. They’re already fighting the next battle, because the one to save DOMA is as good as lost.
Read more from Slate’s coverage of gay marriage cases at the Supreme Court.