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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. @Zlick: It depends upon which state you go to. State income tax returns are tied to federal income tax returns in many cases and if you are in a marriage where one jurisdiction recognizes it and the other does not, you often have to calculate multiple returns: One where you are considered married and another where you aren't. This is why Section 2 of DOMA needs to fall, too, though the only issue being brought before the court is Section 3.

    There are two parts to DOMA (Section 1 is just declaratory stuff):

    Section 2 states that no state is required to recognize the same-sex marriage of another state.

    Section 3 states that the federal government will not recognize a same-sex marriage.

    The case before the SCOTUS is only about Section 3. While it is conceivable that they may decide the whole thing needs to be thrown out, general practice in the law is that you only deal with the case before you and if a law is bad, you only excise the bad part so that the rest of the law will remain.

    Should the court decide against DOMA, they will most likely leave Section 2 in place which means that if you get married in a place that allows it, it still won't be valid in any state that refuses to recognize it.

    Posted by: Rrhain | Mar 28, 2013 2:28:24 PM

  2. Thanks, Ari, for helping me through this. I've read the transcripts, and it seems another elephant may have walked into the room:

    What is equal protection?

    In the abstract, it says to give similar treatment to similar circumstances and that it is OK (but perhaps not necessary) to treat different circumstances differently.
    For purposes of argument, I will assume that couples are sufficiently different from individuals and other groupings of people that it is OK to have a set of privileges and burdens for them alone.

    Same sex couples may marry in a number of jurisdictions if they otherwise meet the requirements of those jurisdictions. Virtually any couple can marry somewhere. States get to define marriage for themselves under the police powers. North Carolina will not license the marriage of a same sex couple and may choose (unless Congress or the Supreme Court decide otherwise) to treat their same sex couple residents as not married.

    The Federal Government has an obligation to give equal protection under Federal laws. Does that mean treating the North Carolina couple the same as the Maine couple, or does it mean treating the Maine same-sex couple the same as the Maine heterosexual couple?

    Posted by: Rich | Mar 28, 2013 2:31:34 PM

  3. seems like none of our branches of govt has the balls to do what needs to be done. each one of them is passing the buck...

    Posted by: t | Mar 28, 2013 3:02:28 PM

  4. Getting rid of Section 2 doesn't change anything. It's redundant because the Supreme Court already created an exemption to the Full Faith and Credit Clause that allows states to ignore any law from another state that conflicts with a clearly stated public policy. They only have to obey court judgements. Which is why adoption degrees for example are portable. Welcome to the "United" States.

    Posted by: Steve | Mar 28, 2013 3:05:50 PM

  5. I'd just like to offer my thanks to Ari for his incredible reporting and commentary over the past years. I felt as prepared and fully briefed on the issues and nuances of the law as the justices themselves. Thank you for all your efforts to keep us educated and informed. Ari, it is an amazing body of work you have done for the Towleroad and the LGBT community. Bravo!

    Posted by: TwoNineteenTrain | Mar 28, 2013 3:35:06 PM

  6. Interesting article from The Huffington Post in 2011 addressing the Full Fait and Credit issue if DOMA Sec 2 were to be struck down.

    Full Faith and Credit does not necessarily apply to marriages so striking down Sec 2 may not do what you think it will.

    Posted by: BCNKC | Mar 28, 2013 3:49:26 PM

  7. @antr: thank you for your question. no, if DOMA sec 3 is struck down. DOMA sec 2 remains. but DOMA sec 2 is just a restatement of current law.

    Posted by: Ari Ezra Waldman | Mar 28, 2013 4:20:26 PM

  8. Kennedy seemed to be invoking states "right" to make laws defining marriage in discriminatory ways, on Tuesday, in spite of showing concern for the 40,000 children in CA with SSM parents. States' rights at what cost to equal treatment under the Constitution?

    Posted by: Jerry | Mar 28, 2013 5:06:22 PM

  9. I know that the Prop 8 case raises the question of whether the Republicans in the House of Representatives have "standing" (the right to bring the case on appeal).

    But I am not yet clear on a related question -- Does the Prop 8 case also raise the question of whether the Supreme Court has jurisdiction? And if so ...

    What happens if the Supreme Court finds that it does not have jurisdiction over Prop 8? Does that mean the 9th Circuit Court didn't have jurisdiction either, even though it held hearings and made a decision?

    Posted by: Wayne | Mar 28, 2013 5:23:08 PM

  10. I know that the Prop 8 case raises the question of whether the Republicans in the House of Representatives have "standing" (the right to bring the case on appeal).

    But I am not yet clear on a related question -- Does the Prop 8 case also raise the question of whether the Supreme Court has jurisdiction? And if so ...

    What happens if the Supreme Court finds that it does not have jurisdiction over Prop 8? Does that mean the 9th Circuit Court didn't have jurisdiction either, even though it held hearings and made a decision?

    Posted by: Wayne | Mar 28, 2013 5:23:09 PM

  11. Ari, you do great work, I like your thinking and appreciate your effort, but you really need to get out more because you are in danger of getting trapped in this legal bubble where you can't see the broader strokes.

    If the conservatives are venting frustration it is because they know that divided court or not they have lost on the issue of not just gay marriages and the blatant discrimination of DOMA, but on the even larger issue of gay equality as a suspect class.

    They know the dam was near bursting in the court system and in government and society when it came to this matter, the toothpaste is out of the rainbow striped tube and can't be put back in, logic demands that if we have a right to marry, or to be free from the hatred that DOMA is, that cannot be corrected without recognition that we are indeed a suspect class. Sotomayor in her brilliant question to Cooper pretty much summed up a vast swath of law in asking "All right. If that -­ if that is true, then why aren't they a class?"

    The answer is as we all know that if we were not a class before as the court has ruled in the past we were the moment DOMA became law, we were the moment states started to define marriages as between one man and one woman, the very fact that they passed these discriminatory gay apartheid Jim Crow laws on the flimsy grounds of defending children and marriages, when they openly stated it was to inflict harm on gays, that made us a class.

    This has trapped the court, conservatives in their rabid animosity toward the millions of gay citizens, and even democrats who abdicated morality and conscience and singed off on these laws for political expediency, they broke not just the social contract, not just violated the constitution equal protection clauses and due process clauses, they de facto made a class of us.

    And because the laws were so un-American, so unconstitutional, the day in the court had to come. And what a dilly it was.

    As to speculation that the court will take a safer way out, they cannot. They might like to but they can't. If they decide to use the political process to settle the gay issue they will have to use standing in both cases to decide narrowly which will flood the courts at all levels with cases. And eventually they will still have to bite the bullet and decide that a US citizen in Arkansas has the same fundamental laws as a citizen in New York or California no matter how much that decision is resented in Little Rock. The states rights argument fails in the case of gays and gay discrimination because the states do not have a right to void the rights of US citizens no matter how repugnant those citizens are to the religious minority de jour running the state. Brown vs. Board of education is a perfect example, the political process left to it's own devices would never ever have resulted in equality for blacks in the south, it will never deliver equality for gays in all but a handful of states, even leftie California voted to remove a right the court granted. If the hatred is so deep that even California can amend the constitution for sentimental reasons of hate and injustice than what hope have the gay people of Mississippi? Are they not citizens equal to me?

    Like it or not there can be no half measure in their ruling and they know that. And there is another consideration in all of this that I have yet to see in any commentary or news story. The US constitution and the founding fathers created our legal system and the US Supreme Court as a fully functioning third branch of government that had powers equal to the president and congress because they knew a president unchecked was a king, a congress unchecked was mob rule, and that a nation of laws must make the law as powerful as the rulers and lawmakers. The SCOTUS decision in Roe vs. Wade was under attack this very week, if the supremes defer justice for gays today to a century of political "process" they risk demoting their role as the third and equal branch of government to that of a few legal academics writing commentary on US functions rather than being a vital part of this nation, they might as well be the editorial staff of The National Review. Obama was the editor of the Harvard Law Review, he had more power in that position than SCOTUS will if they do not do the right thing here and they know it. Key-rist, even the Mexican supreme court ruled this year that gays have equal rights, though implementation there is slower and different. You think Roberts want his tenure to be contrasted as dysfunctional even compared to the Mexican supreme court? People on the right might decry judges "legislating from the bench" but that is our constitution. What they seek is a fascist takeover where courts concern themselves with traffic law and a few criminal cases. In America our constitution makes the courts every bit as much a part of the law of the land as the other two branches even when their decisions are not popular in the trailer park.

    Posted by: Markus | Mar 29, 2013 2:11:42 AM

  12. Oh Markus.....everything you say is true. (except maybe Ari getting out).....but will they bite the bullet or has our new political dysfunction made even the court blind to it. I'm going to pray you are right, but be ready for the punch to the gut.

    Posted by: Michaelandfred | Mar 31, 2013 9:11:32 AM

  13. Or seven throw aways....wait until June.

    Posted by: Jack | Apr 1, 2013 12:00:17 AM

  14. I think it was John D'Emilio who wrote that lgbt equality in the US (and perhaps elsewhere) proceeds at unequal pace - great leaps forwards alternating with slow accretion and consolidation. The last 12 months and especially the days after oral arguments have been truly dizzying and one must concede the point to Chief Justice Roberts about politicians 'falling over each other' to support marriage equality. Many have lived an awfully long time to see this day come (anyone remember the so called 'gay nineties - the very decade when DOMA and DADT were passed?). Very many are no longer with us.

    The dizzying progress is intoxicating. And yet. No guarantee there will be enough votes for marriage equality in Illinois, Rhode Island, Delaware etc, etc. If you can't win equality there.....

    The chances of ENDA passing? The chances of getting anything past the 60 vote filibuster rule?

    And the barriers to marriage equality in some states are very, very high - and would remain so even if there was a majority support in the populace.

    When all progress is made there will still be a necessity for the courts to act because - in some circumstances and some (most?) States we are genuinely powerless but for judicial restraint on majoritarian strictures against us.

    For all the (very real) limitations these have been truly wonderful to have witnessed and lived through.

    Posted by: Craig Nelson | Apr 2, 2013 3:04:52 PM

  15. I actually have a bit of an intellectual question for this thread.

    Everyone is focusing on Justice Kennedy as the swing vote for the current same-sex marriage court cases. But, what many may be forgetting is that Kennedy was not President Reagan's first choice to fill the open spot on the Supreme Court. His first choice was Robert Bork.

    Now, I ask this: How would things have been different if Bork made it through the nomination process and was on the Supreme Court instead of Kennedy?

    Not only for these cases, but all the previous gay rights cases that Kennedy was the swing vote on.

    Posted by: Chris | Apr 3, 2013 12:50:31 PM

  16. There's a post on the American Constitution Society's blog that helps to clarify how federal benefits might play out if DOMA section 3 gets struck down.

    Posted by: THS | Apr 5, 2013 1:17:44 PM

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