Ari Ezra Waldman | DOMA | Gay Marriage | Law - Gay, LGBT | Paul Clement | Supreme Court

DOMA at the Supreme Court: Summary and Analysis of the Argument, Part 2


ClementLet's pick up where we left off. So far, we've learned that some of the justices expressed concern about jurisdiction to hear Windsor. But, Professor Jackson's argument did not fare well at the Court, though, either. Several justices were likely moved the fact that the federal government is still on the hook for Edie Windsor's $350,000 claim. The mere fact that the Administration's tactics of first defending, then opposing, then winning, and still appealing is unprecedented, does not necessarily make it improper. The Administration's obligations to Ms. Windsor gave it the power to appeal to a higher court, so the Court has jurisdiction to hear the case no matter what. The standing of House Republicans to be the ones to defend DOMA becomes less important, in that case. 

We learned that whether the House has standing seemed less of a concern for the Court than whether the procedure the Administration used to get the case got to the Court was proper. It is for this reason, taking it all with a healthy dose of salt, that I think the Court will find it has jurisdiction to hear the case.

AFTER THE JUMP, let's proceed to the substantive portion of the argument, where Paul Clement showed his true colors as an abettor of discrimination and the Court gave us every reason to think it finds DOMA unconstitutional. The question now is the rationale: Will we get a federalism/states' rights decision that would give us a victory, but come back to bite us the next time we're trying to defend a federal civil rights law we like? Or, will we get an equal protection holding that will advance the cause of gay rights in the courts for generations to come? I don't think we can answer this from the questioning alone, but we can tentatively conclude that:

  • Federalism played an important role in the justices' questioning, but not to the exclusion of equal protection. Look for a decision to be informed by both.

  • When it comes to Justice Kennedy, he showed consistent skepticism on federalism grounds.

  • The Chief Justice's toughest questions to the anti-DOMA attorneys involved a somewhat related hypothetical, suggesting that the Chief was scraping the bottom of the barrel to find a pro-DOMA argument.


The Court showed lots of skepticism about the federal government's power to define "marriage." We saw special focus on federalism issues, but also equal protection.

Nothing that happened from here on has challenged my view that the Court will strike down DOMA. Still, it's worth noting that the Court balanced its questions, showing concern for federalism as well as equality.

KennedyTaking in all his questions, Justice Kennedy seemed more curious about DOMA's federalism problem. For example, he pounced on Paul Clement's comment that the federal government is involved in marriage in a whole host of areas. Kennedy said that DOMA is different because it may intrude on the states' prerogative to define marriage, not use it as a trigger in a given law. This is a key point. Conservatives like to say that the federal government has had its hands in marriage law for a long time, so DOMA is no different.

In fact, as Justice Kennedy pointed out early in Mr. Clement's argument, there is a big difference between using the word marriage as a hook when it comes to a given law or a given benefits and a priori defining what is and what will not be a marriage. There are other example, of course, but don't let this hide the fact that Justice Kennedy has issued two gay rights decisions where due process and equality were at the core. His questions on federalism do not mean he thinks DOMA is ok on due process or equal protection grounds; he is just particularly concerned about the federalism problem.

AlitoShortly after came a question from Justice Alito -- what is the purpose of something like federal favorable tax treatment for married couples: is it to foster traditional marriage or to focus on support households that function as a single economic unit? -- that may be that rare instance where a question can tell us where the Court is going. The conservative Alito was expressing the point we have discussed before that DOMA cannot be about encouraging heterosexuals to marry because it deals with the benefits given after two people decide to get married. Those benefits are about a married couple functioning together, not about the sex or sexual orientation of those married. This is a conservative justice criticizing the marriage rationale for DOMA. I think we saw evidence of DOMA's downfall here.

It was Mr. Clement's response to Justice Alito's question that was perhaps the most remarkably ironic and illogical statement of the entire argument: DOMA is constitutional because Congress has an interest in treating all gay couples equally. Without DOMA, Mr. Clement said, gay couples in marriage equality states would get federal benefits, but gay couples in marriage discrimination states would not. 

I was floored when I heard that, and I imagined that Mr. Clement's head would cartoonishly explode after such nonsense. He argues that precisely because some states ban gays from marrying, a gay couple in one state would get federal benefits and a gay couple in another state would not get benefits if we got rid of DOMA. That means that the government has an interest in treating all gay couples the same, but different (and worse) than heterosexual couples. But, if the government has an interest in treating all couples the same across state lines, shouldn't it also then stop defining marriage and give benefits to all those couples the states say are married? Mr. Clement's logic only holds if you append an explanation for gay couples somehow being less worthy than heterosexual couples. (Read this for yourself at pages 61-67 of the transcript).

SupremesWhat followed was a pretty remarkable 10 minutes that can charitably be described as target practice from all sides. Justice Kagan reminded Mr. Clement that some members of Congress had improper, discriminatory motives for passing DOMA. Justice Kennedy said the entire law didn't make sense, with Section 2 purporting to support states' rights and Section 3 (at issue in this case) taking states' rights away. What Justice Kennedy missed was the implication of juxtaposing Sections 2 and 3: the gratuitous recitation of current law in Section 2 (one state does not have to recognize gay marriages in another state if they violate public policy), coupled with the anti-gay federal definition of marriage in Section 3, proves that Congress didn't really care about states' rights; if it really cared about states' rights, it would have never passed Section 3. Rather, it cared only about discriminating against gays, hence the inconsistency on states' rights. Justice Ginsburg highlighted the multitude of ways that DOMA turns valid gay marriages into "skim-milk" marriages, implying that the only reason someone could support DOMA is if he or she felt diluting gay marriages was somehow a good thing. Mr. Clement struggled to respond, returning often to his talking points about how the federal government always meddles in marriage. 

BreyerJustice Breyer then pointed out that Mr. Clement conceded that uniformity of law alone could not justify DOMA (setting aside the fact that DOMA does not make the law uniform in any respect), and that we should look at Congress's rational reasons for passing DOMA. Unfortunately, as Justice Breyer points out, Mr. Clement couldn't offer those rational reasons. Breyer also hit him on the argument that the Court should just stay out of the issue as the states debate marriage themselves. Breyer noted that courts step on challenges regarding discrimination on the basis of age in marriage, for example, as evidence that there is no reason why Congress should have to leave this particular marriage issue -- gays marrying -- up to the political winds without courts getting involved. No effective response from Mr. Clement other than to say gays marrying is something special, code for "redefining traditional marriage."

The questions to Solicitor-General Don Verrilli and Roberta Kaplan, of Paul Weiss, showed that there are few reasons to keep DOMA.

VerrilliChief Justice Roberts took very little time to interrupt Solicitor Verrilli's sad story about discrimination to ask a substantive question about government power: Could the federal government go the other way and define marriage under federal law to include "committed same-sex couples as well." (Side note: If you ever find yourself arguing before a judge, please do not rely on pulling his or her heart strings; focus on the law.). This is an interesting question, but a complete red herring. That intrusion would be very much like DOMA -- defining for the states who is married for federal purposes -- but the legal issue in Windsor is that the federal government cannot ignore who the states say is married: if a state says two gays are married, they should be married for federal purposes; if they're not married, they're not married for federal purposes. I see no reason to jump to the other side of the coin as the Chief did in his hypothetical.

Justice Kennedy followed up with a federalism question, but as representative of the federal government, Mr. Verrilli never wants to be in a position of arguing that his client has no, or little, power. Mr. Verrilli's evasion on the federalism questions is good representation of his client, nothing more. Besides, we want this case decided on equal protection grounds, not federalism. And, so that is what Mr. Verrilli did for most of his 15 minutes: Like I argued here, DOMA fails because it treats similarly situated couples differently and for no good reason other than disapproval of gays. Mr. Verrilli spoke at length about historical discrimination against gays and the importance of heightened scrutiny given the unique burdens placed on gay persons. Naturally, his argument was challenged by Justices Scalia and Alito. The argument received helpful and supportive questioning from Justice Sotomayor.

KaplanWhen the seasoned Paul Weiss litigator Roberta Kaplan took her turn to speak, she too tried to steer her conversation with the justices back to equal protection and away from federalism. At first, after a softball question from Justice Breyer (who always asks long questions), the Chief Justice was having none of it, asking questions about federalism again. But, Ms. Kaplan is a little too smart for that, focusing on the inequality that DOMA creates. Her answer let Justice Scalia harp on the supposed requirement that gays be "politically powerless" to win heightened scrutiny. I think Ms. Kaplan was doing this purposely, egging on the excitable Scalia to move the front line onto her turf -- namely, equality and equal protection. Justice Scalia's crass question doubting that gays have "won the culture wars" allowed Ms. Kaplan to list all the myriad ways in which gays have been and are discriminated against, thus putting DOMA's discrimination in a deeper context, a pattern of behavior of keeping gays down. A powerful strategy indeed, if my intuition is correct.

Paul Clement's rebuttal ended the same way Charles Cooper's rebuttal ended yesterday: gay marriage is going to win through the political process; the Court should stay out of it. I'm happy to have Mr. Clement on board with the eventual equality of my love, but his callous insistence on not only waiting, but also leaving our rights up to the good graces of others does violence to the Constitution and this country's traditions of equality and liberty. It's very convenient now for anti-equality judges and attorneys to note that politicians are "falling all over themselves," as the Chief Justice said to Ms. Kaplan, to be on our side; it makes them seem less hateful. But, it abdicates the judiciary's responsibilities. The Framers created three co-equal branches of government, not one that is always supposed to defer to whatever one of the other branches says. Courts have to step in when majoritarian tyranny and ignorance and hate take a knife to democratic principles. Doing anything less is worse than just asking minorities to patient for the haters to come around; rather, it eviscerates all principles of justice upon which democratic systems are based.

This Court looks primed to eviscerate DOMA instead.

If you missed Part 1 of the DOMA SCOTUS arguments analysis, Find it HERE.


Ari Ezra Waldman teaches at Brooklyn Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. His research focuses on technology, privacy, speech, and gay rights. Ari will be writing weekly posts on law and various LGBT issues. You can follow him on Twitter at @ariezrawaldman.

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  1. Ari, at SCOTUSblog, they wrote that "Kaplan seemingly missed several opportunities, in answering some of the conservative Justices’ tough questioning, to the apparent consternation of gay rights lawyers in the attorney section."

    Perhaps that was too strong, but do you think if Gill had been the accepted case and we could have seen Mary Bonauto arguing, that the last 15 minutes could have gone better?

    Posted by: Mark | Mar 27, 2013 3:18:48 PM

  2. So when does the court issue its judgment?

    Posted by: augiewoof | Mar 27, 2013 3:23:59 PM

  3. Unless it's buried in the transcript somewhere, everyone misses the fact that DOMA discourages gay marriage by making it less economically viable, and that would seem to be its main purpose. It's essentially a "marriage tax", forcing people to choose between money and marriage.

    Posted by: anon | Mar 27, 2013 3:25:56 PM

  4. Reading from Canada and love to get to the nut of these issues: ARI EZRA WALDMAN is the best addition ANDY TOWLE has ever made to this site.

    Posted by: Strepsi | Mar 27, 2013 3:29:12 PM

  5. Reading from Canada and love to get to the nut of these issues: ARI EZRA WALDMAN is the best addition ANDY TOWLE has ever made to this site.

    Posted by: Strepsi | Mar 27, 2013 3:29:14 PM

  6. Things look good, but by no means a slam dunk. That's because if DOMA is struck down (likely), it really starts getting into what Prop 8 dealt with: can states (not just the federal government) refuse to recognize valid marriages that took place in other states. And many of the Justices don't know (yet) what the answer is (or should be).

    The liberals would like to strike down DOMA on equal protection / discrimination grounds. Some of the conservatives (like Kennedy) think that DOMA is most vulnerable on federalism grounds- namely, the federal government has no right to refuse to recognize a marriage that a state has allowed and recognizes. So, if DOMA fails, on which ground(s) will it fail - equal protection (at least 4 votes), federalism (at least 1 vote, maybe even 3 votes), or both? This is an important question because if 4 Justices say DOMA violates equal protection, and if 2 or 3 Justices say DOMA violates federalism, then it's true DOMA is gone -- but what does that mean??

    This is illustrated by the questioning about 3 married same-sex soldiers (presumably married in a state that allows it)who are injured in battle and return to the US. The injured soldiers are in hospitals in state where they now live. One couple lives in a state that recognizes them as married, one couple lives in a state that recognizes same-sex relationships, and one couple lives in a state that recognize nothing same-sex. The question raised was whether the federal government would be OK if the hospitals limited visitation to spouses only - and so two soldiers couldn't be visited by their spouses because they were in states that didn't recognize them as married.

    Some of the Q&A suggests that the two non-visited soldiers are just out-of-luck -- because the US government can defer to what states will recognize as a marriage (based on federalism). That would not be a good result. But the contrary result -- that all states must recognize a valid marriage from another state -- is something that Justice Kennedy (and maybe Roberts and maybe even Alito, per his questions) are really concerned about. They don't seem to want to open that can of worms.....which will come up soon enough.

    All in all, very interesting argument, better than Prop 8 - even if Windsor's attorney did a less than stellar job.

    Posted by: MiddleoftheRoader | Mar 27, 2013 3:29:59 PM

  7. One question. Are they looking to only nullify section 3 of DOMA? Or could they strike down the whole thing and would that lead to other states having to recognize marriage equality from other states who have it?

    Posted by: Not that Rob | Mar 27, 2013 3:31:48 PM

  8. I love Justice Ginsburg. Her comment about the "skim milk" marriage afforded in same-sex marriage states goes to the heart of why DOMA must be struck down.

    Posted by: Hank | Mar 27, 2013 3:38:18 PM


    Get your barf-bags handy and click on that link. This, folks, is why the vast majority of republicans don't support LGBT Equality - because gay republicans present themselves as cowardly idiots.

    truly. Yes, rather than debate or look with discernment, gay republican bloggers choose to...uh....try to talk smack about liberals. because that will bring about Equality.

    feel free to leave them a comment or twenty.

    Posted by: Little Kiwi | Mar 27, 2013 4:02:47 PM

  10. Windsor case is ONLY about Section 3 of DOMA. Section 2, which says states don't have to recognize same-sex marriages from other states, is not before the Court and definitely won't be decided this time around.

    Posted by: MiddleoftheRoader | Mar 27, 2013 4:05:33 PM

  11. Mark, I noticed that too. I wondered if it was that Kaplan really didn't drive home the idea that gays and lesbians do not have political power.

    She seemed to me to acquiesce to CJ Roberts' suggestion that today "political figures are falling all over themselves" to support gay rights, and that is a enough to prove political power. She did give a historical background about discrimination and the recent development of acceptance of gay rights (which admittedly, is a very important aspect of this factor), but she did not adequately explain that 1) powerlessness continues to exist (see all of the rights to which we do not enjoy access), and 2) the idea of political power doesn't mean you've been able to convince others to help you out. This is a form of power, but a weak one that exists only at the whim of others, which is why you need the bulwark of the courts to really protect rights.

    This allowed Clement to walk all over her argument and crow that gays have all sorts of power because they've been able to persuade. This distorts the standard. I hope her briefing was stronger on this point.

    Posted by: AB | Mar 27, 2013 4:50:38 PM

  12. What I don't understand, is they're worried that saying Equal Protection means that states who don't recognize same-sex marriages will have to recognize them and they're worried about the Federalism/States' Right s view of that, but isn't that what Loving v. Virginia did - and forced states who didn't recognize inter-racial marriages to recognize them? It's already been done before, right?

    Posted by: Kieran | Mar 27, 2013 4:52:05 PM

  13. @ MiddleoftheRoader

    Do we really have a precedent to determine whether federal benefits are granted via recognition of the marriage by the state of issuance or the state of residence (or even, state of residence at the time of marriage?)

    In other words, if all three couples were married in Iowa, but one soldier is in a VA hospital in Alabama, does the federal government recognize the marriage for federal purposes, even if the state doesn't for state purposes?

    I don't know of any precedent for this situation. Is there one?

    Posted by: Lymis | Mar 27, 2013 4:52:20 PM

  14. Basically, it's a mixed bag. DOMA is looking likely to, to some degree, go down, but how it goes down and how far-reaching the decision is applied are a big deal. Pete Williams said it's likely to be a very narrow ruling, as with Prop 8.

    Oh well. Nothing more than what I expected. But progress nonetheless!

    Posted by: Francis | Mar 27, 2013 5:17:08 PM

  15. I understand Kennedy's federalism leanings, but I really think that if he tries to craft an opinion on those grounds, he'll find it doesn't write. I mean, I really can't see him going down the Tenth Amendment road, and if the Congress has the constitutional power to condition benefits on the grounds of marriage, then it must have the authority to define what marriage means for those benefits. I think it makes perfect sense to fold the federalism concerns into the weakness of the federal interest that is supposedly supporting the discrimination. But in the end, I just can't see Kennedy putting together a coherent opinion holding that Congress lacks the power to define marriage for purposes of federal statutes.

    Posted by: Glenn | Mar 27, 2013 5:25:03 PM

  16. My prediction: DOMA will be struck down on grounds of federalism. This will create an apartheid system of marriage recognition in the U.S. Same-sex couples whose marriage is recognized in their states of residence will qualify for full federal benefits and recognition. Same-sex couple who were legally married but live in states that don't recognize their marriage (and this describes my husband and me) will not qualify for any federal benefits or recognitions. This system will exist in uneasy truce, until some legally married (but federally unrecognized) couples bring a case to SCOTUS on equal protection grounds.

    Posted by: Clayton | Mar 27, 2013 5:27:29 PM

  17. I read the following comment on the New York Times website and was blown away by how succinct it is:

    "The Supreme Court does not exist to serve as a parental unit. Its justices are not there to decide if and when we "are ready" to accept equal treatment for all of our citizens. It is a court of law, and whether it is reviewing DOMA or Roe v. Wade, the merits of a case should decide the outcome, not some vague notion of whether we can handle it. It's all well and good to develop consensus through state initiatives and local voting booths, but some issues are a broad matter of human rights and fairness, and we the people have shown many times that we are fully capable of putting our own prejudices before the rights of others. This is why the Supreme Court plays such a key role in making the tough calls that protect democracy, the constitution, and human rights in this country. Let's hope the justices stop acting like father/mother knows best and start doing their jobs. Justice waits for no one."

    Posted by: Jeff | Mar 27, 2013 5:30:13 PM

  18. My fears are realized.

    They will use this as a dance to push for state's rights rather than equality under the 5th Amendment.

    That's the worse possible outcome for future cases both in this and other areas.

    Posted by: Factoid | Mar 27, 2013 5:51:39 PM

  19. @notthatrob: thank you for your question. just section 3.

    Posted by: Ari Ezra Waldman | Mar 27, 2013 5:59:37 PM

  20. Thank you for your closing comments on the role of the judiciary, Ari. I'm concerned about J. Ginsberg's recent comments where she appears inclined to hide behind Roe v. Wade as an excuse to avoid doing the right thing in Perry. She thinks the court got out too far ahead of the public, simultaneously overestimating and underestimating the importance of the court. Bottom line - it's their job to rule correctly, no matter how popular or unpopular - esp. in heightened scrutiny cases.

    Posted by: Steve | Mar 27, 2013 6:00:43 PM

  21. The Roe argument really is a pathetic excuse to avoid making "controversial" decisions (apparently not on economic issues however). The whole right to choose under the Constitution is questionable judicial reasoning, but there is absolutely no doubt that there is an equal protection clause.

    To use something that had questionable Con Law grounds to try to avoid deciding something with firm Con Law ground is just playing on the ignorance of crowd.

    They really are showing how political they are here.

    Posted by: Factoid | Mar 27, 2013 6:16:35 PM

  22. Can someone kindly start making supportive comments toward gay marriage on the Los Angeles NBC 4 facebook page. I'm SHOCKED at how homophobic so many in Los Angeles can be (and virtually all Hispanic and black posters, which breaks my heart as a latino) but these comments being made against gay marriage are deplorable and there's only me and a couple others defending our rights.

    Someone please contribute to the gay marriage discussion on top of the NBC 4 LA/Burbank facebook page

    Posted by: Lynel | Mar 27, 2013 6:16:41 PM

  23. Love the quote: "...also leaving our rights up to the good graces of others does violence to the Constitution and this country's traditions of equality and liberty."

    Sorry, must steal!

    Posted by: Jay | Mar 27, 2013 6:17:21 PM

  24. Ask the people of Mississippi and Alabama and Tennessee and Louisiana and Kentucky and Kansas, and MANY other states, if their political leaders are "falling all over themselves to support gay rights"!

    Posted by: TampaZeke | Mar 27, 2013 6:19:38 PM

  25. @jay: thanks! but dont steal. borrow… and cite! :)

    Posted by: Ari Ezra Waldman | Mar 27, 2013 6:20:20 PM

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