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

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.


  1. Mark says

    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?

  2. anon says

    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.

  3. Strepsi says

    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.

  4. Strepsi says

    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.

  5. MiddleoftheRoader says

    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.

  6. Not that Rob says

    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?

  7. says

    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.

  8. says

    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.

  9. MiddleoftheRoader says

    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.

  10. AB says

    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.

  11. Kieran says

    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?

  12. Lymis says

    @ 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?

  13. Francis says

    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!

  14. Glenn says

    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.

  15. Clayton says

    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.

  16. Jeff says

    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.”

  17. Factoid says

    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.

  18. Steve says

    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.

  19. Factoid says

    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.

  20. Lynel says

    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

  21. Jay says

    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!

  22. TampaZeke says

    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”!

  23. MiddleoftheRoader says

    Lymis — Good questions. I don’t believe there is any legal precedent, certainly no Supreme Court precedent, about whether federal benefits depend on the state where a couple was married vs. state where the couple currently lives vs. the state where the couple got married (if they lived in one state but went to another state to get married). And that’s a different question from the question of whether one state recognizes a marriage done in another state. HOWEVER, Loving v. Virginia suggests that those situations must have occurred where federal benefits were involved. The Lovings got married in DC, but they returned to their state of VA. And there are many other reported court cases where inter-racial couples married in State A, but then moved to State B where it was illegal (over 25 states had such laws). But those reported cases deal with the 2nd state not recognizing the marriage from the 1st state, and not the issue of federal benefits. Still, I bet that those inter-racial couples were recognized as “married” by the federal government (for taxes, Social Security, Veteran’s benefits, etc) even though many of these couples lived in a state that didn’t consider them married. It would be interesting for someone to research that issue because it’s coming up next in terms of same-sex marriage.

    Glenn — That’s exactly Kennedy’s problem. I think it will cause him to go down the Equal Protection route, BUT …and this is a BIG BUT(T) … in a way that doesn’t commit him to national same-sex marriage being a constitutional right. I think Kennedy will say something like “there’s discrimination and one reason why it’s NOT rational is that under the concept of federalism the federal government has always deferred to the states in terms of the definition of ‘marriage’ for federal statutory purposes, and now the federal government has irrationally abandoned the concept of federalism in order to create this discriminatory result; and even if it had a rational basis to abandon federalism, there must be something more than a rational basis when the federal government starts intruding upon state rights to permit marriages.

    Also, let’s not forget: the weirdo federalists might even say that if a state doesn’t want to recognize a marriage from another state for purposes of state benefits or carrying out state laws, then the state might have a right to do that under the concept of federalism; but that doesn’t mean that the feds can refuse to recognize a marriage that was legal in State A when it was performed there, even if State B (where they live) won’t recognize it. Of course all of this presumes the Supreme Court won’t apply Loving to same-sex marriages (which I don’t think it’s going to do in the Prop 8 case because Kennedy isn’t ready to go there yet). But in 5 years, all of these issues will probably disappear when the Supreme Court decides that a marriage doesn’t disappear for any purposes, federal or state, when a married couple moves.

  24. Chitown Kev says

    Ari, here’s my question.

    personally, I think that Kagan’s line of questioning and quoting from the house Judiciary Committee Report nailed Clement and the defense to the wall.

    I know that only section 3 is up for review. And I think that the Court will get rid of that by a 6-3 or even a 7-2 vote.

    Is it possible that Kagan could convince Kennedy (who wrote the Romer decision) to ditch all of DOMA?

  25. Chitown Kev says


    True, only Section 3 is for review but Elena Kagan presented a sound rationale for getting rid of all of DOMA right now. Whether she can convince Kennedy or Roberts to do so is a different question but Section 3 is gone, for sure.

  26. Zlick says

    I thought Windsor’s lawyer did a fine enough job resisting the assertion that gays had political power just because we suddenly won elections last year and have politicians falling all over themselves to be on the gay side this week. She stuck to her guns there, and refused to link the “sea change” in public attitude to gay political power alone.

  27. BobN says

    About 100 Republicans “fell over themselves” in our support. There are over 100,000,000 Republicans in the country and they control a majority of the states.

  28. Steve says

    Saying that the federal government should only recognize a same-sex marriage that’s valid in the state of residence is absurd. I know some laws (like Social Security and Veterans’ Benefits) are explicit about that, but most don’t specify it.

    It would mean that the federal gov. can’t dictate to the states what to do, but that the states can dictate to the federal gov. That’s insane.

    The whole system can only work if the federal government recognizes as valid a marriage that’s valid anywhere and the states can decide for their own, but only for state benefits. Otherwise why bother having a country in the first place. And why call it “United” States? Might as well have 50 independent countries.

  29. Abel says

    As always, Mr. Waldman’s analyses and opinions are well worth reading, and deeply appreciated. Thanks again!

  30. Roman says

    It seems to me that the Chief Justice is open to the idea of striking down section 3 of DOMA on federalism grounds. I would point to his question, first put to Solicitor General Verrilli on page 81 of the transcript (the discussion and follow-ups continue until page 85 and draw the eager participation of Justice Kennedy) and which he later asks to Ms. Kaplan right as she begins her arguments (pp 95 to 99).

    I interpret the Chief Justice’s inquiry to suggest that he is looking for a way to strike down Section 3 on federalism grounds without reaching the equal protection argument. He is suggesting that by creating a definition of marriage inconsistent with that of the states, the federal government is usurping the states’ authority to define marriage. And it does so whether by excluding same-sex couples when the states include them (DOMA), or by including them when the states exclude them (The Chief’s hypothetical). This solution quickly draws Kennedy’s attention and he appears to signal unwillingness to reach equal protection if the law can be struck down on federalism grounds (p 84).

    Mr. Waldman dismisses it as a red herring, but in so far as Chief Justice Roberts’ hypothetical means to get at the question of whether Section 3 violates federalism principles independently of the equal protection argument it is a valid line of inquiry (although I would agree with Mr. Waldman’s dismissal in the sense that I do not believe that the Chief’s hypothetical would necessarily run afoul of federalism whilst I do think that DOMA, as written and for reasons behind it’s enactment, likely does).*

    If this analysis is correct, it raises the possibility that Roberts may be trying to convince Kennedy to hold off on reaching the equal protection claim and to join (or write) a majority opinion finding DOMA unconstitutional on federalism grounds. Such a decision would get us what we want here, but likely prove damaging in the future (and would join the line of cases skeptical of federal power that the Chief Justice seems keen to perpetuate).

    Whether such an opinion could draw five votes is unclear given that it only has three at the outset: Roberts, Kennedy and (maybe) Alito. There’s almost certainly four votes for an equal protection opinion, with a likely concurrence from Kennedy so that’s a majority right there. The Chief would have to convince some liberal Justices to hold off on equal protection or the other conservatives to accept to strike down DOMA (something I don’t see Scalia doing). So on balance I don’t think it’s a very likely threat, but it is a possibility.

    *[I suppose that it might be argued that Roberts is merely seeking to expose some form of hypocrisy on the part of the Solicitor and Kaplan: “DOMA poses a federal problem because it does something we don’t like, but we like the idea in the hypothetical so that would be okay.” And though that may be true, I think that the time he spends on this question and the fact that he brings it up again first thing when Kaplan is up strongly indicates that this is a serious question important to Roberts]

  31. Rob says

    The notion of the majority voting on rights of the minority is really horrifying (even though, if you add us all up, a majority of us are in some minority.) NYTimes and Ari get to this at the end, but it didn’t seem front and center at SCOTUS either day. It’s up to you Supremes! You DO have jurisdiction, and we DO need a ruling. And we will keep coming back until we get it.