DOMA Likely to Fall
Posted: March 27, 2013 Filed under: Marriage Equality | Tags: DOMA 16 CommentsIt appears that the arguments and questioning on DOMA during the SCOTUS hearing today have put the 17 year old law into question. As usual, SCOTUSBLOG has some great analysis of the arguments.
That was the overriding impression after just under two hours of argument Wednesday on the fate of the Defense of Marriage Act.
That would happen, it appeared, primarily because Justice Anthony M. Kennedy seemed persuaded that the federal law intruded too deeply into the power of the states to regulate marriage, and that the federal definition cannot prevail. The only barrier to such a ruling, it appeared, was the chance – an outside one, though — that the Court majority might conclude that there is no live case before it at this point.
After a sometimes bewilderingly complex first hour, discussing the Court’s power to decide the case of United States v. Windsor (12-307), the Court moved on to explore DOMA’s constitutionality. And one of the most talented lawyers appearing these days before the Court — Washington attorney Paul D. Clement — faced fervent opposition to his defense of DOMA from enough members of the Court to make the difference. He was there on behalf of the Republican leaders of the House (as majority members of the House’s Bipartisan Legal Advisory Group), defending the law because the Obama administration has stopped doing so.
Justice Kennedy told Clement that there was “a real risk” that DOMA would interfere with the traditional authority of states to regulate marriage. Kennedy also seemed troubled about the sweeping breadth of DOMA’s Section 3, noting that its ban on benefits to already married same-sex couples under 1,100 laws and programs would mean that the federal government was “intertwined with citizens’ daily lives.” He questioned Congress’s very authority to pass such a broad law.
Moreover, Kennedy questioned Clement’s most basic argument — that Congress was only reaching for uniformity, so that federal agencies would not have to sort out who was or was not married legally in deciding who could qualify for federal marital benefits, because some states were on the verge of recognizing same-sex marriage.
Along with sharply negative comments about DOMA by the Court’s four more liberal members, Kennedy’s stance could put the law on the edge of constitutional extinction. But, if the Court were to do that based on states’ rights premises, the final ruling might not say much at all about whether same-sex couples were any closer to gaining an equal right to marry under the Constitution.
There did not appear to be a majority of Justices willing to strike down the 1996 law based on the argument that the Obama administration and gay rights advocates have been pressing: that is, the law violates the Fifth Amendment guarantee of legal equality in general.
Elena Kagan had some interesting moments today.
In discussing the origins of the law, Paul Clement, who represents the Bipartisan Legal Advisory Group, said that Congress’s key interest in passing DOMA was preserving the uniform treatment of couples in various states at a time when there where indications that some states might allow same-sex marriages.
“All these federal statutes were passed with the traditional definition of marriage in mind,” Clement said. “What Congress says is, ‘Let’s take a time out. This is a redefinition of an age-old tradition.’”But Kagan fired back in her questioning, telling Clement that Congress wasn’t preserving tradition, but departing from it when it jumped into the marriage issue. “The only uniformity that the federal government has pursued is that it’s uniformly recognized the marriages that are recognized by the state,” she said. Congress’ foray into the issue in 1996 was so unusual that it “sen[t] up a pretty good red flag,” she said.
A short time later, Kagan read aloud from the House Judiciary Committee report on DOMA. “Congress decided to reflect and honor of collective moral judgment and to express moral disapproval of homosexuality,” she said, quoting the report.
“Is that what happened in 1996?” she asked to gasps, “oohs” and some laughter from many in the gallery who seemed to think she’d managed a rare Supreme Court “gotcha” moment.
Clement said he was not claiming moral disapproval constituted a sufficient basis for the law. “The House report says those things,” he said. But, he added, “we’ve never invoked [the report] in trying to defend the statute.”
The crowd outside the SCOTUS building got rowdy and into some fights. Other interesting analysis can be found on Slate. I loved this line by Ginsberg.
Justice Ruth Bader Ginsburg had the laugh line of the day when she scolded DOMA for creating “two kinds of marriage, full marriage and the skim-milk marriage.” It was easy to see which one you’d want in your coffee.
Please post more things you’ve found on the arguments today!
peej
Carissa
ecocatwoman
mablue2
peggysue22
quixote
skydancingguestblogger
Mona (aka Wonk the Vote)
Sky Dancing 
Justice Ginsburg is a far better comic than Fat Tony. 🙂
Ginsburg is a classic. Too bad we don’t have about 4 more of her.
I posted this on the last thread, but I think it belongs here.
Boehner committed $3M in taxpayers’ money for DOMA defense–6 times as much as he originally said he would spend.
I usually can’t stand Maureen Dowd, but today she viciously mocked the SCOTUS “old fuddy duddies.” I applaud her for that.
How fucked up is it that a serial killer on death row can marry a pen pal who he’s never had anything more than a snail mail relationship with, and I can’t marry my partner of 30 yrs.
My next door neighbor is 67 and she is going to marry her 70 yr old man friend in June. There will be no children from that marriage. Judge Sotomayor spoke the truth to that work of fiction.
You can say that again mouse!
John Roberts DOMA Skepticism: Chief Justice Wonders If Law Was Really Motivated By Homophobia
Question: If marriage can only be between one man and one woman, does that mean that DOMA outlaws Newt Gringrich’s marriage?
John Roberts must have been living with Willy Wonka in the chocolate factory during the 90’s if he doesn’t remember that DOMA was a knee jerk reaction to the efforts in the NE, specifically Vermont, to pass Civil Unions. Of course Vermonts Civil Union law didn’t pass until 1999/2000, but fear of liberal states legalizing civil unions or gay marriage was positively the impetus behind DOMA.
Maybe I need to call John Roberts and read him my diaries from the 90’s.
He was sitting right there when Elena Kagen quoted from the bill itself–it stated that the purpose was to fight homosexuality.
It was only a few days ago that EL Rushbo was whining that if Prop 8 or DOMA is overturned or deemed unconstitutional, the venerable institution of marriage is destroyed. Then he went on to ask, what would be next? “adults marrying children” I suppose he’s off the “adults marrying animals” once he realized that the 4 women who married him, married an animal. And then yesterday he remarked that “lesbians are obese substance abusers.” Right!!! All this from a guy who has been married 4 times, was caught with a stash of viagra on his way to the Dominican Republic (which is a primespot to score an underage sex slave) he has no children by his 4 wives, maybe the Viagra was counterfeit, and he is an obese substance abuser. I can’t believe people actually listen to this old whore.
But today, after the SCOTUS hearings Limbaugh was resigned to the reality of what’s happening. LImbaug said : ” opponents of gay marriage are being told that “the country is changing and you better get with it and understand it. The genie is not getting put back in the bottle.” “And I think that’s right,” Limbaugh declared. “I don’t care what this court does with this particular ruling, Proposition 8. I think the inertia is clearly moving in the direction that there is going to be gay marriage at some point nationwide.”
You damn right Mr. Oxycontin Limpnoodle man.
There are already numerous laws against adults marrying children. What an idiot.
You know, some one should do an article on women and marriages………..there was a time that women were considered property of the husband, and she had no recourse to ownership of land, or her body, sure as the hell couldn’t vote, much less sit on the surpreme court. She couldn’t deny sex to her husband either. Seems like the GOP, the religious rights, and our institutions are turning us back in time. We need to stay in the fight for legal changes, it’s important to expose those on the bench who are part of taking us backwards in time.
It seems like 1873, Susan B. Anthony had a case in regards to 14th amendment. Women couldn’t be lawyers, and a married woman did not have the ability contract…………they were housekeepers, especially during marriages. Name changed, and domicile. Emancipation and the new radicalism, and women movement, and civil rights, and gay rights, and human rights is the whys and wherefores of any relationship.
I had to post this, it is perfect:
LOL
And one more: http://editorialcartoonists.com/cartoons/BagleP/2013/BagleP20130328_low.jpg