Marcia Coyle, chief Washington correspondent for The National Law Journal and a longtime U.S. Supreme Court reporter, has just emerged from the court's argument over the constitutionality of the Defense of Marriage Act of 1996, which forbids federal recognition of same-sex marriage. The Obama administration abandoned the defense of the law. The Bipartisan Legal Advisory Group of the U.S. House of Representatives supported it. Coyle spoke with NLJ reporter Mike Scarcella about today's court action:
The takeaway is they seemed divided on the jurisdictional questions, with the more liberal justices apparently being sympathetic to the government's role in the case and the more conservative justices sympathetic to BLAG's role. Both sides raised serious questions. On the merits, it appeared there may be a majority on the court to strike down Section 3 of DOMA, which defines marriage as the union between a man and woman for all federal purposes.
It was another fascinating argument today. There are jurisdictional questions in the DOMA case as well questions on the merits. On the jurisdictional question, the court weighed whether the United States was properly before the court. It seemed to me the court is divided on those two questions. The court's more liberal justices were sympathetic to the government's argument that it does have standing to be in the case even though it agreed with the lower court's judgment. On BLAG's standing, the court's conservatives seemed more sympathetic to Paul Clement's argument that the House has the power to intervene to defend the statute under House rules and a House resolution. Clement made the argument it was necessary to have the House in the case so that the district court would have some party adverse, to make a record for appellate review.
I do think they will get to the merits despite the division on the jurisdictional questions. On the merits, my sense of this was that Section 3 of DOMA would be found unconstitutional. There's even a possibility that Justice Samuel Alito, in some of his questions, might find the justification for Section 3 weak and illogical.
One of the more dramatic moments in the argument was when Justice Kagan read from the House report when DOMA was passed in 1996. The report spoke to the disapproval of homosexuality. Justice Kagan pressed Clement whether that was no evidence that DOMA was based on animus. He responded that although there may have been some animus at work, Congress, and the House in particular, was concerned at the time with having a uniform federal law. They were concerned there might be a revolution in how states treated marriage. Congress wanted to be sure federal law treated citizens in North Carolina the same as citizens in New York State.
The court also dealt with what standard of review to apply to section 3. On the standard of review, the justices seemed to be also not clear on whether they would apply rational basis, the easiest test in terms of the law surviving, or heightened scrutiny, which is what the Obama administration advanced and the Second Circuit used to strike down DOMA.
Federalism was definitely an issue in the arguments. Justice Sotomayor asked Mr. Clement about what gives the federal government the right to be concerned about what the definition of marriage is particularly when marriage is an interest that belongs to the state. Clement stressed throughout his argument that DOMA doesn’t regulate marriage. He said it defines it for federal purposes in every one of the federal statutes where marriage figures.
Solicitor General Donald Verrilli Jr. picked up on Clement's argument that Congress, in enacting DOMA, was seeking to ensure uniformity of federal law. Mr. Verrilli said: "This statute is not called the uniform federal marriage act. It's called the Defense of Marriage Act. It's not directed at uniformity."
Chief Justice John Roberts Jr. appeared skeptical of the government's argument as well as the argument made by Roberta Kaplan, representing Edith Windsor. He probed Kaplan in particular on what she called the "sea change" in public understanding of gay marriage. He pressed her on whether this was really the result of the power of those who represent the gay movement. And that exchange between him and Kaplan may figure into whether the Chief Justice views sexual orientation as a protected class of deserving of heightened scrutiny under the constitution.
We'll have a full story on the Supreme Court argument later in the day. For additional coverage from The National Law Journal, including analysis, transcripts and audio, click here.