by Suzanne B. Goldberg, Herbert and Doris Wechsler Clinical Professor of Law  at Columbia Law School

The favorite arguments of the Defense of Marriage Act’s defenders – that the the federal government can take a uniform approach to marriage while leaving states free to do what they choose – took a pounding at the Supreme Court during this morning’s argument in Windsor v. United States, strongly suggesting that if the Court reaches the merits, DOMA is dead.

Justice Kennedy jumped in first regarding DOMA’s singular exclusion of same-sex couples:  “[I]ts not really uniformity because it regulates only one aspect of marriage. It doesn’t regulate all of marriage.”  In context, the observation highlighted that DOMA does not regulate marriage uniformly but instead regulates gay people uniformly – and negatively. 

Reinforcing uniformity’s weakness as a DOMA defense, Justice Breyer asked Paul Clement, the lawyer for the Bipartisan Legal Advisory Group (BLAG) that is defending DOMA, whether “uniformity” could also justify a hypothetical federal law that denied benefits to married couples under age 18:  “So if you’re 17 when you get married, then no tax deduction, no medical, no nothing.”  In other words, although “uniformity” might sound like a neutral (i.e. not overtly antigay) defense, it cannot explain the law’s singling out of gay and lesbian married couples.

Here, Justice Kagan came in with the closer, observing that “for the most part and historically, the only uniformity that the federal government has pursued is that it’s uniformly recognized the marriages that are recognized by the State.” DOMA’s sharp break with this tradition “suggests that maybe something — maybe Congress had something different in mind than uniformity,” she said.  Though the implication may not leap off the written page, her tone – and her follow-up quotation from the 1996 House Report regarding DOMA – “Congress decided to reflect . . . collective moral judgment and to express moral disapproval of homosexuality” – made the point crystal clear. 

Hear Justice Kagan make her point.

Another favorite defense – that DOMA leaves states free to do as they wish regarding marriage for same-sex couples – ended the morning looking at least as implausible as uniformity.  Again, Justice Kennedy:  “Congress doesn’t help the State[s] which have come to the conclusion that gay marriage is lawful.”

Here, too, Justice Ginsburg also made a powerful point.  By not recognizing same-sex couples’ marriages, DOMA diminishes those marriages in profound ways.  She observed:  “the problem is if we are totally for the States’ decision that there is a marriage between two people, for the federal government then to come in to say no joint return, no marital deduction, no Social Security benefits; your spouse is very sick but you can’t get leave; people -­if that set of attributes, one might well ask, what kind of marriage is this?”

Of course, to get to the point of rejecting DOMA’s defenses, the Court first has to find it has jurisdiction to address them.  While it seems likely that BLAG will not find five votes for its standing, the Court’s view of whether the federal government can seek review when it agrees with the lower court’s ruling is tougher to call.  The Court’s conservatives expressed strong concern that the floodgates might open if the government declines to defend laws and then can appeal when those laws are struck down.  But the federal government likely remains aggrieved when any of its laws is invalidated, even on the rare occasions it agrees that a law is unconstitutional. 

And stepping back, given the likelihood that the Court will dismiss Perry (the Prop 8 case) without deciding the measure’s unconstitutionality, the Court risks taking its own legitimacy pounding if it backs away from addressing DOMA as well.

Suzanne B. Goldberg is the Herbert and Doris Wechsler Clinical Professor of Law; Co-Director of the Center for Gender & Sexuality Law; and Director of the Sexuality and Gender Law Clinic at Columbia Law School

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