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

BY ARI EZRA WALDMAN

Let'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.

CONTINUED, AFTER THE JUMP...

DOMA at the Supreme Court: Summary and Analysis of the Argument, Part 1

BY ARI EZRA WALDMAN

Marriage week continues at the Supreme Court with today's argument on the constitutionality of the Defense of Marriage Act (DOMA). This case raises the question of whether the federal government can refuse to recognize the marriages of gay couples who get married in the states. DOMA Section 3 defines marriage as only between one man and one woman for federal purposes and, therefore, prevents those couples from accessing thousands of federal benefits and obligations attendant to marriage, like joint tax filing and spousal sponsorship visas.

Yesterday, during the long hearing on California's Prop 8, we learned that several justices were concerned about the Prop 8 proponents' right to be there at all (standing). We saw Justice Scalia's insensitive snark, powerful questioning from Justices Kagan and Sotomayor, pointed insight from Justice Ginsburg when she questioned the Prop 8 proponents' attorney, Charles Cooper, and strategic arguments from Ted Olson and Don Verrilli. We also saw Justice Kennedy "struggling" with the issue of marriage discrimination as sex discrimination and Justice Sotomayor pummelling Mr. Cooper with the implications of his discriminatory positions.

Will we see some of the same concerns raised today? The DOMA case raises its own standing concerns that could get it thrown out, which is why the Court allocated a full 50 minutes just to the standing question. Setting aside so much time to one specific question, however, does not necessarily mean the justices are more focused on standing in DOMA than they were in Prop 8. Rather, because all parties have always agreed that standing was met, the standing question was never fully addressed. Think of the first 50 minutes as the Court's attempt to make sure it gets all sides of the issue, with Harvard Law Professor Vicki Jackson arguing against standing. Then, the Court moved to the merits, which is where it got interesting.

Nothing in the oral arguments made me change my view of Windsor: This case gives conservatives and liberals the opportunity to come together to declare DOMA unconstitutional (starting at 2:37). And, although I think we should be cautious about drawing substantive conclusions based on questioning from judges who often play the devil's advocates, today's argument gave us a few clues about what the justices were thinking:

• The Court was indeed concerned about standing, but it doesn't appear likely that the Court will toss Windsor on standing or jurisdictional grounds. Justice Ginsburg is always a particularly active questioner on standing issues; she is a former masterful civil procedure professor. Several justices, including those as different as Justices Alito and Kagan, appear on board for jurisdiction.

• Federalism and equality were at the core of most of the substantive questions about DOMA. Justice Kennedy was particularly concerned about federalism and how DOMA intrudes into the realm of the States. But, don't think that his line of questioning means he is blind to the equality concerns.

• Justice Alito showed deep skepticism about how DOMA could ever be related to encouraging heterosexuals to get married. That's a telling question from a justice who does not seem to play the devil's advocate a lot.

In short, the argument in Windsor exceeded even Ted Olson's success at the Prop 8 argument. Edie Windsor will win; it is just a matter of how big a win it will be.

AFTER THE JUMP, I summarize some of the highlights of the first part of today's argument and offer some conclusions and analysis. The standing material is a bit arcane, but I did my best to spice it up with some sense of the importance of the issue in the courtroom.

CONTINUED, AFTER THE JUMP...

Proposition 8 at the Supreme Court: Analysis of Today's Argument, Part 2

BY ARI EZRA WALDMAN

In Part II of Towleroad's summary and analysis of the Prop 8 oral argument, we pick up with Ted Olson's argument against Prop 8. Read Part One HERE.

And listen to audio and read the full transcript HERE.

Here's what we have discussed so far:

• The justices are definitely interested in the standing question. The Chief Justice, though playing a gate-keeper role to make sure standing gets addressed, expressed skepticism. The key will be to see if he is playing the devil's advocate or expresses skepticism with Mr. Olson, too. But, in addition to the Chief Justice, Justice Ginsburg is highly skeptical. If we see more evidence of this below, look for lack of standing to be the odds-on favorite of many pundits. But, remember, there were lots of other questions on the merits from all the justices. That does not mean that they are going to pass by standing. Nor does it preclude a 9-0 opinion saying the Proponents had no standing.

• Mr. Cooper was forced to admit that the only injury caused by allowing gays to marry would be redefining marriage, which is clearly not an injury whatsoever. He also admitted that gays simply do not advance the government's interest in encouraging natural procreation within wedlock (even though he's wrong about that), which proves that a ban on gays marrying cannot actually advance that interest, either. If it weren't for some help from Justice Scalia, this case would be over on this point alone.

• Justice Kennedy showed that he, like many, are struggling with this issue. The addition of this relatively emotional admission (emotional, at least, by Supreme Court argument standards) is telling of his honesty and the reality that many people are going through right now. This may suggest that Justice Kennedy is going through his process, perhaps with a little help from everyone else along the way.

We pick up with Ted Olson's argument and see what lessons we can draw,
AFTER THE JUMP...

Rachel Maddow's Supreme Court Marriage Equality Preview: VIDEO

Rachel Maddow looks at how pathetic the Republican party looks on the issue of equal marriage, and how the Court might move on the issue ahead of arguments on Prop 8 and DOMA today and tomorrow. She also talks with NYU Constitutional Law Professor Kenji Yoshino.

Check it all out, AFTER THE JUMP...

Supreme Court Preview: Roberts, Kennedy, and their Court - Some Final Thoughts on Impacts and Outcomes

BY ARI EZRA WALDMAN

On Tuesday and Wednesday, March 26 and 27, the Supreme Court will hear more than 3 hours of arguments in the challenges to the constitutionality of California's Proposition 8 (Hollingsworth v. Perry) and the Defense of Marriage Act (Windsor v. United States). In a series of short posts, I will preview and summarize the legal issues that will be raised. In this post, some general questions to consider.

The expectations are high and the anticipation is palpable. Eager citizens have been camping out at the Supreme Court for days. Rallies are planned, the lawyers are ready, and Chief Justice Roberts is hours away from leaning forward in his center chair and say

"We'll hear argument first this morning in Case 12-144, Hollingsworth v. Perry. Mr. Olson..."

at which point Ted Olson, President George W. Bush's solicitor-general, will begin his argument that California's Prop 8 violates the U.S. Constitution. It a law nerd's March Madness, just with shorter men and longer sleeves.

Having covered questions of standing (in Prop 8 and DOMA), scrutiny, and equal protection, we are now well prepared to understand what will happen at the Court tomorrow and in June, when decisions will be handed down. For now, I'd like to take a step back from the legal details and offer some perspective and highlight a few questions to keep in mind. From these questions, one thing seems clear: this show has many stars -- Olson, David Boies, Ted Boutrous, Edie Windsor, Kris Perry, Sandy Stier, Paul Katami, Jeff Zarrillo, to name just a few -- but the show will end with three stars shining above the rest: Chief Justice Roberts, Justice Kennedy, and the American people.

Some final thoughts about what to expect tomorrow and Wednesday, AFTER THE JUMP...

Supreme Court Preview: Equal Protection in the DOMA and Prop 8 Cases

BY ARI EZRA WALDMAN

On Tuesday and Wednesday, March 26 and 27, the Supreme Court will hear more than 3 hours of arguments in the challenges to the constitutionality of California's Proposition 8 (Hollingsworth v. Perry) and the Defense of Marriage Act (Windsor v. United States). In a series of short posts, I will preview and summarize the legal issues that will be raised. Today, the constitutionality of Prop 8 and DOMA.

We've discussed the preliminary jurisdictional question of standing, without which, the Supreme Court cannot hear the Prop 8 and DOMA cases. We've also discussed the first substantive question of scrutiny, which the Court may not even fully answer. Now, we can discuss the underlying question: Assuming standing and given a particular level of scrutiny, are Prop 8 and DOMA unconstitutional?

The Court could answer these questions any way it wants. DOMA is especially subject to a federalism critique -- namely, marriage law is the exclusive realm of the States and a federal definition of marriage is a gross expansion of federal power. Notably, Massachusetts District Court Judge Joseph Tauro and the First Circuit Court of Appeals referenced federalism concerns in both of their decisions striking down DOMA in Gill v. OPM. The Court could also follow Judge Vaughn Walker and use the operative Due Process Clauses to find that a broad fundamental right to marry applies to gay persons just like it applies to everyone else.

Let's keep it simple, though, and focus on equal protection. The standard rule is that the Constitution does not countenance treating similar citizens differently without a good reason. Disparate treatment is especially odious when the discriminated citizens are part of a traditionally disadvantaged group and it is most likely to fail the higher the level of scrutiny.

I think Prop 8 and DOMA fail under any level of scrutiny, even the low rational basis, because the proponents' justifications for both laws are completely divorced from the effects of those laws. A law that simply takes away the word "marriage" from gay couples who have every other right to raise children and create a family and a law that simply denies federal benefits to already married gay couples can have no rational connection to the government's interest in encouraging heterosexuals to marry. The very irrationality of these laws may hearten us as we look forward to favorable pro-equality decisions in June, but may also put a heightened scrutiny determination out of reach.

Let's discuss AFTER THE JUMP...