Intelligencer Journal/Lancaster New Era
Justices seem skeptical of DOMA
BY CAROLYN LOCHHEAD, San Francisco Chronicle
WASHINGTON -- The Supreme Court may not be ready to find a constitutional right to same-sex marriage, as posed Tuesday by California's Proposition 8, but on Wednesday a majority of the justices seemed offended that the federal government denies more than 1,100 rights and benefits to legally married gay and lesbian couples.
The double-barreled attack on Proposition 8's same-sex marriage ban and the denial of federal benefits to gay and lesbian married couples under the federal Defense of Marriage Act, or DOMA, is a milestone in the gay civil rights movement.
DOMA, signed into law by President Clinton in 1996, defines marriage as the union of one man and one woman for federal purposes, involving everything from tax to immigration law.
Five of the court's nine justices, four liberals and swing Justice Anthony Kennedy, expressed deep skepticism about DOMA's constitutionality.
Justice Ruth Bader Ginsberg said the law creates "two kinds of marriage: the full marriage and then this sort of skim milk marriage."
While warning against reading too much into oral arguments, legal observers speculated that the court could have a majority to strike down DOMA. That would require the federal government to recognize same-sex marriages in the nine states and District of Columbia that legalized them. But it would not extend same-sex marriage to states that do not allow it.
Kennedy seemed much more reluctant on Tuesday to strike down Proposition 8 by finding a constitutional right to same-sex marriage that would apply to all 50 states, including 38 that now ban such marriages.
But under DOMA, Kennedy relied on a conservative federalism argument that looks askance at intrusions of the federal government on states. Few areas are more traditionally a state domain than marriage.
DOMA doesn't just define marriage for federal purposes, Kennedy said; rather, it imposes that definition on the nine states and the District of Columbia that allow gay and lesbian marriages.
When more than 1,100 federal laws are involved, "the federal government is intertwined with the citizens' day-to-day life (and) you are at real risk of running in conflict" with state authority, he said.
Justice Elena Kagan was among the most aggressive challengers of DOMA's constitutionality on equal protection grounds. Kagan ripped apart the argument from DOMA defense lawyer Paul Clement that Congress' intention when it passed the law was merely to provide uniformity in marriage laws across the states.
Kagan quoted the House Judiciary Committee report that said Congress wanted "to express moral disapproval of homosexuality"
"Do we really think that Congress was doing this for uniformity reasons," Kagan asked, "or do we think that Congress's judgment was infected by dislike, by fear, by animus and so forth?"
Stanford law professor Jane Schacter said she was struck by Kennedy's focus on issues of state authority, or federalism, and his seeming disinterest in whether the law violates the 14th Amendment guarantee of equal protection.
Kennedy "was not at all interested in engaging with equal protection problems," Schacter said. "He didn't really want to talk about it."
Schacter speculated that the four liberal justices, Ginsberg, Kagan, Sonia Sotomayor and Stephen Breyer could strike down DOMA on equal protection grounds, joined by Kennedy on federalism grounds.
Even so, Schacter said, the court striking down DOMA is "not a slam dunk."
Several justices probed whether the court should even decide DOMA, questioning whether an obscure entity of the House of Representatives, the Bipartisan Legal Advisory Group, has the legal standing to defend DOMA after President Obama and Attorney General Eric Holder stopped defending it in February 2011.
The group consists of the five party leaders of the House: Speaker John Boehner, R-Ohio, Majority Leader Eric Cantor, R-Va., and Majority Whip Kevin McCarthy, R-Calif., along with House Minority Leader Nancy Pelosi, D-Calif., and Minority Whip Steny Hoyer, D-Md. Outvoting Pelosi and Hoyer, the three Republicans hired Clement, a former solicitor general in the George W. Bush administration, to defend DOMA. They have spent about $3 million.
Pelosi said Wednesday that the Republicans "showed up one day," held the vote, "and never again did we meet."
Similar technical questions of legal standing affect the Prop. 8 case, where the initiative is being defended by its sponsors after Gov. Jerry Brown, Attorney General Kamala Harris and other California officials refused to do so.
The court could hold that neither case has standing.