On Wednesday morning at ten o’clock, the Court will begin its second day hearing oral arguments in cases involving same-sex marriage.  But when the Chief Justice summons the lawyers in United States v. Windsor to the lectern on Wednesday, the Court will not be questioning them on whether there is a constitutional right to same-sex marriage, but instead about whether Congress can pass a law that treats same-sex couples who are already married differently from opposite-sex couples.  Having said that, there is a very good chance that the reasoning on which the Court relies to reach its decision in the Windsor case will affect not only the question in Tuesday’s case, Hollingsworth v. Perry, the challenge to California’s ban on same-sex marriage, but also the broader question of a right to same-sex marriage.  Let’s talk about the issues in the Windsor case in Plain English.      

First, a little bit of background.  In 1996, in response to a ruling by the Hawaii Supreme Court which suggested that there might be a constitutional right to same-sex marriage, Congress passed the federal Defense of Marriage Act (DOMA) by large margins in both houses.  For purposes of over a thousand federal laws, implicating everything from immigration to federal estate taxes, DOMA defines “marriage” as a union between a man and a woman.

Like the Clinton and Bush administrations before it, the Obama administration originally defended the law against challenges in federal court.  That ended in February 2011, when Attorney General Eric Holder announced that the President regarded the law as unconstitutional and had instructed the Department of Justice not to defend the statute any longer.  Several House Republican leaders, in their role as part of the House’s Bipartisan Legal Advisory Group (BLAG), then stepped in to defend DOMA in court.

As various challenges to DOMA wound their way through the legal system, last year not one but two federal courts of appeals struck down the law as unconstitutional.  And although the Supreme Court grants review of only about one percent of the cases that it is asked to hear every year, it has a near-perfect track record of granting review when a lower court rules that a federal law violates the Constitution.  Thus, the question then became not whether the Court would weigh in on DOMA, but in which case.

The Court answered that question on December 7, 2012, when it granted review in United States v. Windsor, a challenge to DOMA that was originally filed by Edith Windsor, an octogenarian living in New York City.  In 2007, Ms. Windsor had married Thea Spyer, her same-sex partner of over forty years, in Canada.  Dr. Spyer died two years later, leaving Ms. Windsor her entire estate – which came with a federal estate tax bill of $363,000, which Ms. Windsor would not have had to pay if she had been married to a man.  Along the lines of what it did in the Proposition 8 case, which it granted on the same day, the Court asked the parties to address not only the question of DOMA’s constitutionality, but also whether it could even review the case in the first place.  On the latter question, it appointed a “friend of the court,” Harvard law professor Vicki Jackson, to argue that it did not.

Ms. Jackson filed her brief in late January.  In it, she argues that BLAG does not have a right to appear in court to defend DOMA because even the full Congress wouldn’t have the right to do so.  But even if Congress did, she adds, that still wouldn’t be enough for BLAG, because only Congress – not BLAG – would be injured by the Obama administration’s failure to enforce the statute.  Moreover, the Court can’t review the case for the additional reason that the federal government agreed with both Ms. Windsor and the lower court decision that it is now asking the Court to review, and so the case lacks the kind of “case or controversy” that the Constitution requires for the courts to rule.

Both BLAG and the federal government agree with part (but not all) of Jackson’s assessment.  Like Jackson, BLAG contends that the United States (and, for that matter, Edith Windsor) cannot contest the lower court’s decision in the Supreme Court because it has gotten everything that it wanted.  And because BLAG would be injured if the law were invalidated, it continues, the Court should dismiss the government’s case and grant BLAG’s own case, in which it is seeking review of the lower court’s decision in . . . wait for it . . . Windsor’s case.

For its part, the United States argues that BLAG doesn’t have a right to be in the case, but there is a dispute that would allow the Supreme Court to consider the case:  if DOMA is invalid, the federal government will have to give Edith Windsor a tax refund.

Is this a serious question that could prevent the Court from ruling on the constitutionality of DOMA, or is this just the Court covering its bases, as it did in the health care case when it appointed a lawyer to argue that the individual mandate was a tax, and so an obscure nineteenth-century law prohibited the Court from reviewing the mandate until it actually goes into effect in 2014?  As you may recall, the Court played a game of legal Twister to allow it to review the mandate, holding that the mandate was not a tax for purposes of the law, but it was nonetheless a tax that Congress could impose using its taxing power.  The Court may have fewer options here if at least five Justices believe that it lacks the power to decide the case.  However, if the Justices had really suspected a problem before they granted review, they could have opted to review one of the other DOMA challenges in the pipeline instead.

In its brief on the constitutionality of DOMA, BLAG rejects the lower court’s ruling that courts should use a more demanding test – known as “heightened scrutiny” – to review the law because gays and lesbians have traditionally been victims of discrimination.  To the contrary, BLAG suggests, gays and lesbians are “one of the most influential, best-connected, and best-organized groups in modern politics, and have attained more legislative victories, political power, and popular favor in less time than virtually any other group in American history” – as reflected in the fall 2012 elections and the fact that they have the support of both President Obama and Attorney General Holder in this case.  But even if the Court did apply “heightened scrutiny,” BLAG goes on to say, DOMA would still be constitutional because governments have an important interest in being able to address “an issue as divisive and fast-moving as same-sex marriage for itself.”

BLAG also tries to dismiss arguments that, with DOMA, Congress is infringing on the rights of states to define marriage as they wish.  All Congress did in DOMA, BLAG suggests, was decide how it wanted to define marriage for federal purposes – the same prerogative that states have.  Nothing in DOMA prevents the states from defining marriage as they choose; but if the states choose a different definition than Congress has chosen, DOMA won’t recognize it for federal purposes.

Just as it did in its “friend of the court” brief in the Proposition 8 case, the federal government urges the Court to subject DOMA to the stringent “heightened scrutiny” standard.  It argues that when the Court is determining what level of scrutiny a law should get, the question is whether the group affected by the law has been a victim of discrimination and lacks political power.  On that standard, DOMA and other laws that discriminate against gays and lesbians should be subject to heightened scrutiny, because – as Proposition 8 illustrates – there is still plenty of discrimination against gays and lesbians. And while BLAG points to the recent elections as evidence that gays and lesbians don’t need protection from the Court, the government counters by focusing on the bigger picture:  only six states have legalized same-sex marriage through the political process, it notes, while in the seventeen years since DOMA was passed, thirty-six states (out of thirty-nine total) have prohibited same-sex marriage.

Edith Windsor’s arguments are very similar to those made by the United States, with which she is aligned, but her brief is also a very personal one.  She tells her life story in some detail to highlight how she was not able, for most of her life, to live as an openly gay woman because of the discrimination that gays and lesbians faced at the time.

In addition to the briefs filed by those directly involved in the case, the Justices also have before them literally dozens of “friend of the court” briefs on both sides.  A few of the briefs filed in support of the federal government and Ms. Windsor, in particular, come from unexpected sources.  For example, one brief was filed by a group of Republicans that includes former Republican National Committee chair Ken Mehlman, Mary Cheney, and Clint Eastwood, while a group of conservative and libertarian law professors – including one of the architects of the argument (with which five Justices agreed) that Congress could not rely on its powers under the Commerce Clause to enact the individual mandate – contended that Congress does not have the power to define marriage.

At Wednesday’s oral arguments, the Court will lead off with the question of its authority to consider the case; after (roughly) fifty minutes on that topic, it will then spend an hour grilling lawyers for BLAG, the federal government, and Ms. Windsor on whether DOMA violates the Constitution.  We’ll follow up with extensive coverage of those arguments, including a full report in Plain English.

[Disclosure:  A lawyer in the law firm of Goldstein & Russell, P.C., in which I am a partner, filed a friend-of-the-court brief in support of the United States and Ms. Windsor.  However, I did not participate in that brief.]

Posted in U.S. v. Windsor, Everything Else, Featured, Merits Cases, Same-Sex Marriage

Recommended Citation: Amy Howe, Will the Court defend DOMA?: In Plain English, SCOTUSblog (Mar. 25, 2013, 10:41 PM), http://www.scotusblog.com/2013/03/will-the-court-defend-doma-in-plain-english/