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Seven Takeaways from Marriage Week at the Supreme Court


SupremesFor three hours over two days, the Supreme Court discussed the freedom to marry. The justices asked questions about the law of the love after recent polling showed that 58 % of Americans, and a slew of moderate-to-conservative politicians, supported equality. This trend caught the attention of an unusually ascerbic Chief Justice, who said that leaders were "falling over themselves" to support gay rights. His convenient ignorance of the litany of burdens and discriminations we face every day, his insensitivity and willful ignorance of the plight of sexual minorities, and Roberta Kaplan's inadequate response to his flippancy should not damper the euphoric feeling that what happened this week was historic. The freedom to marry had a hearing at the Supreme Court, where the shallowness of discrimination was laid bare for the world to see. As we await favorable decisions in June, the world is a different place today than it was on Monday.

Many media are making conclusions about the end of DOMA, a narrow standing decision in the Prop 8 case, and the end of the culture wars with a victory for gay rights. Some of these predictions may turn out to be right, but we can't know that and it misses the true legal and political lessons from the last two days.

Having already offered detailed summaries and initial analysis of the Prop 8 (Part 1 and Part 2) and DOMA hearings (Part 1 and Part 2), I would like to take a step back and think more broadly. Here are the seven takeaways from Marriage Week at the Supreme Court.

1. The bench was "hot," asking lots of questions, but don't read too much into those questions.

Just because a justice asks a question critiquing one side's argument does not necessarily point to his or her ultimate decision. Judges play the devil's advocate for many reasons other than preening. If these cases were so open and shut, there would be no need for briefs, reply briefs, and oral argument; neither side ever has a perfect case. Therefore, the justices need to probe the logical, legal, and policy problems, not only to help them decide the case but also to determine the best way to decide the ultimate question. Oral argument questions are also just as much about persuading colleagues as challenging attorneys. Justice Ginsburg may have thought of something that the Chief Justice missed, or vice versa; Justice Sotomayor's demand that Paul Clement give her a single reason for discriminating against gay couples, and his inability to do so, may have worried the Chief and Justices Kennedy and Alito about siding with an impossibly weak argument.


2. That we didn't see as many questions about equality as we thought, and a lot more questions about standing and jurisdiction, does not mean DOMA and Prop 8 will live or die on less sexy issues like standing or federalism.

We have to be cautious using questions to determine where the justices are leaning. Justice Kennedy's failure to ask a lot of questions about equality and due process, except to worry about Ted Olson's broad proposed holding, may mean that he simply had no questions about that area of law, that the legal issues were pretty clear, and that no amount of oral argument was necessary to get to clarify this or that point about the Equal Protection claim.

J_roberts3. The gay community's very recent political success could be used as a cudgel against vindication at court, but that would require willful ignorance of history and law.

The Chief Justice was uncharacteristically flippant when he said that politicians were "falling over themselves" to support the freedom to marry. Justice Scalia was characteristically nasty when he referred to our community's political power. No one has to be politically powerless in order to have his rights vindicated in a court of law, but it took several questions from the Court's liberal wing to remind their conservative colleagues. Winning over 58% of the population and Rob Portman and Kay Hagan are great, and those successes may portend many more in the future, but harping on these recent changes in political winds ignore longstanding discrimination, ongoing bias (see, e.g., Kentucky), and the continuing burdens imposed on us by constitutional marriage bans in the states.

Obama4. A few of the Court's conservatives were pissed, venting frustration at the President. They vented because there wasn't anything they could do about it.

The Chief Justice said the President lacked "the courage of his convictions" for continuing to enforce DOMA while believing it unconstitutional. Justices Kennedy and Scalia harped on the unique Administration maneuvers that brough the DOMA case to the Court: the Administration first defending, then declining to defend, then switching sides, winning, and still appealing. 

This was among the more ridiculous lines of questioning of Marriage Week. What would the Chief have the President do? Declare a duly enacted law and stop enforcing it, completely ignoring his responsibilities? Had the President done that, I bet we could count on one hand the number of seconds before the Republican House wrote up articles of impeachment. And, as Justice Alito pointed out, since the federal government is still on the hook for Edie Windsor's $350,000 estate tax bill, it has been injured regardless of the legal position it takes on DOMA. So, what the Administration did was unusual, but it did not deprive the Court of jurisdiction.

A_scalia5. What the conservatives really want is judicial abdication in the face of the political process... Well, at least when it comes to gay rights.

The Court's conservatives were also probably a little pissed because the world is passing them by. Justices Scalia and Thomas have been clear about their distaste for anything gay, and the social conservatism of President Bush's nominees, the Chief Justice and Justice Alito, were obvious during their confirmation hearings and their tenures as judges. So, they couched their skepticism about gays marrying in backhanded compliments about our recent political successes. Both Charles Cooper, the attorney for the Prop 8 Proponents, and Paul Clement, the attorney for House Republicans, picked up on this and concluded their remarks with pleas for letting the political process, which they conceded gays are winning, play out without judicial intervention.

This is just the most recent example of what conservative lawyers have inconsistently wanted since the 1960s: judicial abdication. Diatribes against so-called "activist judges" and calls for the absolute supremacy of the political branches are really products of conservative disrespect for the judiciary's leadership expanding individual rights at the expense of traditional authority. Of course, that abdication turns activist when conservatives want to overturn a progressive law (see, Obamacare, campaign finance regulations, the Civil Rights Act). In the political process, conservatives can mislead, strike fear in voters, and also stop people from voting; in a courtroom, the hollowness of their arguments are shown the light.

But setting aside conservatives' biased manipulation of legal doctrine, the plea for abdication in this case is nothing less than a direct threat to democratic institutions. They talk about it like they respect democracy: You judges are unelected, let the people decide. In fact, that idea challenges the co-equality of the judicial branch and courts' role in preventing mobs of voters from discriminating against people they don't like. Liberty is not just whatever the people say, even if they're saying something you like.

Bonauto6. Women!

The stars of Marriage Week at the Supreme Court were Justices Ginsburg, Sotomayor, and Kagan; Edie Windsor, Kris Perry, and Sandy Stier, of course; and, though she was a spectator at One First Street, Mary Bonauto. Yes, Ted Olson and David Boies got laudatory headlines, and Jeff Zarrillo and Paul Katami have sacrificed so much for their community. But, this week we were reminded why we need more women on the Court.

Justice Sotomayor eviscerated anti-gay discrimination in under one minute. Justice Kagan was Paul Clement's sharpest questioner, pointing out his lies about why DOMA was passed. And, no one will forget Justice Ginsburg's "skim milk marriages" comment. These three lions of the law showed their unwavering support for equality. 

But, one woman didn't get a lot of press or the chance to swat back at Scalia's nasty tone and misreading of the law. Mary Bonauto (pictured), the legal eagle of the Gay and Lesbian Advocates and Defenders (GLAD), is the dean of our community's lawyers. She has been arguing (and winning) gay rights cases in the federal courts for longer than some of us have been alive and was the counsel of record in another DOMA case, Gill v. OPM. Along with people like Jon Davidson at Lambda Legal, Ms. Bonauto is responsible for more gay rights advances than anyone else. Roberta Kaplan, Edie Windsor's attorney, did a fine job in a tough position, and I don't join the several liberal critics who think she dropped the ball. Let's just not forget that Ms. Bonauto probably made all this possible.

2doma_scotus7. The Supreme Court matters.

Media are "falling over themselves" to declare the freedom to marry inevitable, even if the Supreme Court makes the wrong decision in June. Even conservatives like Charles Cooper and Paul Clement think it's inevitable. Don't fall for this trick. If the hearing at the Supreme Court has the effect of elevating our struggle for rights and highlighting the emptiness and hate of the opposition, an unfavorable decision in June will hurt. Sure, it will hurt the Court's esteem in the eyes of a public that is happy with a man marrying the man he loves, but it will hurt us more. 

Thanks to the 2004 election, we have many state constitutional provisions banning gay marriage. Each unfavorable or narrow Supreme Court decision on the freedom to marry not only leaves those in place to continue harming gay couples across the country, but unhelpful decisions tossing Prop 8 on standing or tossing Windsor on jurisdiction deprives us of strong precedent for equality that could be used in the next case. Without Romer, without Lawrence, there would be no Windsor or Hollingsworth. We need the latter two to be better, stronger, more direct in their support for freedom, love, and equality. 


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. You don't mention Roberta Kaplan among your list of women 'stars' of the week.

    Do I take it you agree with ScotusBlog's view that Kaplan disappointed?

    Posted by: tcw | Mar 28, 2013 11:49:18 AM

  2. Thank you for this excellent "broad view" and for all the great coverage.

    Posted by: John | Mar 28, 2013 12:07:29 PM

  3. Can you at some point touch on outcomes if DOMA falls and there is a narrow ruling in the Prop 8 case? I keep hearing that it will mean that legally married same sex couples living in marriage equality states will get the federal benefits of marriage.

    Fine, but what I want to know is about other legally married gay couples not living in those states.

    I have many friends who have married in DC, NY or MA and have returned home to a non-marriage equality state. Or they married in their state where it was legal and have since moved to a non-marriage equality state.

    While I know that DOMA doesn't require a non-marraige equality state from recognizing that marriage (and that portion of DOMA was not being challeneged), So while that state might not recognize the marriage, is the Federal Government also not going to now recognize it simply based on the unfortunate need to live or relocate to another state?

    Very confusing to me and I haven't seen it addressed.

    Posted by: Jeff | Mar 28, 2013 12:18:33 PM

  4. Thanks Ari. I can see why the conservative justices may want to dodge the bullet in Prop 8, or go down on the wrong side of history. But in Windsor, they don't seem to have that option. Any vote to support DOMA, after the arguments where presented is going to appear to support discrimination in the eyes of the media and public. Scalia and Thomas may not care, but I sense the others don't want to be written into history as having trampled individual rights.

    Posted by: Jim Tideman | Mar 28, 2013 12:33:32 PM

  5. @Jeff

    if you are denied benefits, you would be able sue in federal court would be my guess.

    It would pretty much be the same situation as Loving v. Virginia (the Lovings didn't have the obstacle of a DOMA for interracial couples).

    But I could be wrong

    Posted by: Chitown Kev | Mar 28, 2013 12:36:30 PM

  6. @tcw: mentioned ms Kaplan twice.

    Email by Ari, Typos by iPhone.

    Posted by: Ari Ezra Waldman | Mar 28, 2013 12:51:50 PM

  7. Time for Chief Justice Roberts to step up.

    Standing and all the other irrelevant legal grandstanding (BS) aside, he has to see very clearly that Prop 8 is about subjecting the civil rights of a minority group to popular vote.

    What's your legacy going to be Justice Roberts?

    Posted by: JONES | Mar 28, 2013 12:53:27 PM

  8. I'm also confused about the post-DOMA world where a gay couple gets legally married in Post-Prop 8 California, but then moves or returns home to South Carolina. I've asked this question all over the internet, and all I've gotten back is that the IRS won't care. (Likely that's because, in most cases, you pay more money married filing jointly than filing separately). But what about the Social Security Administration - and, yeah, the othere thousand or so federal benefits?

    In the post-DOMA world, another lawsuit will (hopefully soon) arise to take care of the absurd situation where states won't recognize the validity of certain marriages from other states, but what will it take to clarify the federal position on state of wedlock vs. state of current residence? Will you get your benefits check the week before you leave New York, but not the next when you arrive in your new Kentucky home?

    Posted by: Zlick | Mar 28, 2013 1:04:00 PM

  9. @Jeff
    It depends on the law. Idiotically, some laws like Social Security specifically spell out that they will only recognize a marriage that is valid in the state of residence. But most don't say anything about it.

    Ultimately, it doesn't make any sense whatsoever for the federal government to defer to the states on this. It's supposed to be one country and the government can't treat people different for moving around.

    Posted by: Steve | Mar 28, 2013 1:06:39 PM

  10. Except the cell phone and internet comment was below the bar.

    Posted by: BearlyBob | Mar 28, 2013 1:11:15 PM

  11. i still can't believe that time, money and energy was wasted in passing bills in order to "not recognize gay marriages from other states"

    Posted by: Little Kiwi | Mar 28, 2013 1:11:44 PM

  12. its my understanding that should DOMA in its entirety fall, the full faith and credit clause is restored, and a marriage in one state will therefore be a marriage in all states. it might be a bit of an inconvenience to travel out of town to get married, but completely doable, especially as more states climb on board.

    that is unless they cherry pick which sections of DOMA are found invalid, and doing that would be nothing more than pure cussedness...

    Posted by: bandanajack | Mar 28, 2013 1:19:11 PM

  13. @bandanajack.... It is ONLY SECTION 3 of DOMA that is being challenged. It is Section 2 of DOMA that allows states to not recognize marriages from other states and that section isn't at issue in the case that was heard.

    The court would have to go out of their way to strike down Section 2 when it wasn't even at issue.

    Posted by: anonymous | Mar 28, 2013 1:39:20 PM

  14. @bandanajack This DOMA challenge is only about Section 3 - which defines marriage for federal purposes. It does not challenge Section 2 which takes full faith and credit off of the table.

    The best could hope for in either of these cases is that we have a substantive ruling applying heightened scrutiny. That would allow people in states where marriage is not allowed to challenge based on equal protection. We could get that ruling in the Prop 8 cases, but it is less likely. If we do get that ruling in the DOMA case it would be a great result. I think it is clear from the arguments this week that marriage discrimination would have a very hard time surviving heightened scrutiny - heck I don't even think it survives rational basis review.

    A heightened scrutiny application treating gays as a suspect class goes far beyond marriage though. Once the court recognizes us as a suspect class the road to equality is paved much more evenly.

    Posted by: jdswell | Mar 28, 2013 1:40:43 PM

  15. If one section of DOMA is found to be unconstitutional, as appears likely, why not introduce a Federal repeal effort for the rest of it?

    Given the "falling all over themselves" (as one of the Justices remarked) recent movements by politicians to support gay marriage, that might be a good strategy for the Democrats to force Republicans to go on record. Even if the repeal effort failed, we would be no worse off. And Republicans would have to explain in future elections why they voted to continue what an increasing majority of Americans view as clear discrimination.

    This is an excellent wedge issue against the Republican party. It would force the Republicans to the right to satisfy their conservative/primary base, and make it harder for them to win nationally given that their base had forced them into a position that most voters dislike. It would also help satisfy that complaint that this is not done organically via a democratic/political process, and is instead being done by "activist judges."

    Posted by: SC David | Mar 28, 2013 1:48:19 PM

  16. @bandanajack: only one section of DOMA is being challenged. The full faith and credit issue was not litigated here, and they won't rule on it.

    Posted by: Lars | Mar 28, 2013 1:50:35 PM

  17. Undoubtedly there will be a Section 2 lawsuit filed before the ink is dry on the June SCOTUS ruling, but I was hoping that wouldn't be strictly necessary.

    So, thanks, Steve, for that info on the Social Security Administration. Apparently, that lawsuit will be necessary after all. As will one to establish the level of scrutiny to be applied to sexual orientation discrimination - as it's fairly certain SCOTUS is going to avoid that issue like the plague this time around.

    Posted by: Zlick | Mar 28, 2013 2:00:05 PM

  18. My Highlight: Ginsburg mentioning Reed v. Reed, a 1971 case she briefed!!! and making the point that rational basis is sufficient to invalidate a law. Since I'm speaking 42 years later, don't talk to me about scrutiny, I'll show you how this scrutiny thing works.

    Posted by: Chuckles | Mar 28, 2013 2:12:40 PM

  19. @Zlick

    SCOTUS can go beyond the initial scope to make a ruling striking all of DOMA.

    The Court did that with Citizens United, remember.

    As far as the Congress getting rid of DOMA in its' entirety, I suspect that's the reason people are coming out of the woodworks supporting marriage when there seems to be no pending legislation in the Senate.

    Posted by: Chitown kev | Mar 28, 2013 2:13:19 PM

  20. SO can anyone answer that question ? EVERYBODY is talking about STRIKING DOWN DOMA; when only part of a law [ section 3] is found unconstitutional and struck down, does that mean the WHOLE LAW DOMA is invalid ?

    I READ ALL OF ARI ERZA WALDMAN ’s articles pertaining DOMA. He never mention this specific aspect. HOW COME ?

    Posted by: Ant | Mar 28, 2013 2:13:48 PM

  21. Seems to me that the question of what to do if one lives in a no same sex state is to move to a state that allows it. If we all leave and live where we are fully long will it be before the rogue states give in? Money still talks loudest.I also believe that when major corporations in these states realise that they can't get the best employees.... oh boy will there be changes.

    Posted by: KURT QUINTON | Mar 28, 2013 2:14:47 PM

  22. Seems to me that the question of what to do if one lives in a no same sex state is to move to a state that allows it. If we all leave and live where we are fully long will it be before the rogue states give in? Money still talks loudest.I also believe that when major corporations in these states realise that they can't get the best employees.... oh boy will there be changes.

    Posted by: KURT QUINTON | Mar 28, 2013 2:14:48 PM

  23. @SC David: Senator Leahy introduced repeal today.

    Posted by: Dwight | Mar 28, 2013 2:15:44 PM

  24. Jeff and Zlick -- yes it is very complicated.

    If DOMA section 3 falls, the rights that people in SSMs have if they live in a non-SSM state vary. The IRS asks if your marriage is valid where you live. Immigration asks if your marriage was valid when and where celebrated. Military personnel should be in great shape. It will take a while to sort out and it's damn good to have an administration that's on our side.

    Challenging DOMA Section 2 is a tough one, but will probably happen in a piecemeal fashion. For example, children can sue to get amended birth certificates showing their real (i.e., same-sex) parents. (Some already have, with mixed results.) But states will be controlling their own state income tax rules for a very long time.

    Now back to work in Rhode Island... Illinois... etc.

    Posted by: Chuckles | Mar 28, 2013 2:20:48 PM

  25. Very disappointed in Chief Roberts. On Wednesday he reacted incredulously to the notion that members of the Senate or the U.S. president may have been motivated to pass the Defense of Marriage Act by animus or moral objection to gay and lesbian couples. If should have been embarrassed after Justice Kagan read outloud the relevant passage in the bill detailing the homophobic bias. This kind of pardon of egregious wrongdoing by those legislators that are vested with the responsibility of creating law for all Americans is inexcusable.

    Posted by: Joseph | Mar 28, 2013 2:22:30 PM

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