The Defense of Marriage Act Can’t Be Defended

Oral argument from the court.
March 27 2013 4:39 PM

Ditching DOMA

Judging by Wednesday’s Supreme Court hearing, the Defense of Marriage Act can’t be defended.

Demonstrators stand outside the Supreme Court in Washington, Tuesday, March 26, 2013, where the court will hear arguments on California’s voter approved ban on same-sex marriage, Proposition 8.
Edie Windsor, center, blows a kiss to same-sex marriage supporters as she leaves the Supreme Court on Wednesday.

Photo by Jewel Samad/AFP/Getty Images

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.


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