Our day(s) in court

Supreme Court hears arguments on Defense of Marriage Act

The United States Supreme Court

Questioning at the Supreme Court during oral arguments on Wednesday was just as intense as the previous day as justices grilled attorneys on standing and federalism issues related to the Defense of Marriage Act.

The prospects of the court striking down the 1996 law seem strong as no justices expressed any particular love for DOMA, but it’s possible the court may not reach consideration of the constitutionality of the law because of standing and jurisdiction issues.

Associate Justice Ruth Bader Ginsburg, a Clinton appointee, expressed concern over DOMA because benefits — including Social Security survivor benefits and access to family medical leave — are withheld from married same-sex couples under the law.

Under DOMA, Ginsburg said one might ask the question, “What kind of marriage is this?” She compared the law to a statute that creates “full marriage, and then this sort of skim milk marriage.”

Associate Justice Anthony Kennedy, a Reagan appointee who’s considered a swing vote in the case, made a lot of inquiries on DOMA, but at one point may have tipped his hand when he talked about the “real risk” of encroaching on state power to define marriage.

At issue in the case is Section 3 of DOMA, which prohibits federal recognition of same-sex marriage. As a result of that 1996 law, Edith Windsor had to pay $363,000 in estate taxes in 2009 upon the death of her spouse, Thea Spyer. Had Windsor inherited the money from her opposite-sex spouse, the inheritance would not have been taxed.

The court room was just as packed for the DOMA arguments as it was for the Prop 8 arguments. Among those seen in attendance were Human Rights Campaign President Chad Griffin, Senior Adviser to President Obama Valerie Jarrett and House Minority Leader Nancy Pelosi (D-Calif.).

Robert Kaplan, a New York-based private attorney working in coordination with the American Civil Liberties Union, said DOMA violates equal protection rights under the U.S. Constitution for not just Windsor, but all married gay couples.

“Because of DOMA, many thousands of people in nine states [that allow gay marriage] and the District of Columbia are being [treated differently] by the federal government simply because they’re gay,” Kaplan said.

Arguing on behalf of DOMA was Paul Clement, a former U.S. solicitor general under President George W. Bush who was hired by House Republicans to defend the law after the Obama administration declined to do so in February 2011.

Clement said DOMA helps create uniformity for the federal government as the democratic process is underway deciding the issue of marriage.

“All DOMA does is take this term where it appears in federal law and defines it where it applies in federal law,” Clement said.

U.S. Solicitor General Donald Verrilli, who’s taken up litigation against DOMA on behalf of the Obama administration, argued DOMA is unconstitutional because it violates equal protection for gay people under the U.S. Constitution.

“What Section 3 does is exclude an array of benefits from lawfully married couples,” Verrilli said.

Further, he said DOMA should be subject to heightened scrutiny, or a greater assumption that it is unconstitutional, because of the “terrible discrimination” faced by gay couples.

Verrilli also disputed Clement’s argument that DOMA helps ensure uniformityfor the U.S. government, saying “if anything, it makes federal administration more difficult.”

Standing was so much of an issue for the DOMA case that justices allotted extended time and the first half of the oral arguments to consider the issue.

There are two questions: whether the House Republican-led Bipartisan Legal Advisory Group has standing to defend DOMA in court, and whether the Supreme Court has jurisdiction to hear the case because the U.S. government appealed even though it got what it wanted when the district court ruled against the anti-gay law.

Vicki Jackson, a Harvard law professor hired by the court to answer this question, made her case for why BLAG doesn’t have standing and the court doesn’t have jurisdiction to decide the issue.

Jackson said the U.S. government lacks standing to appeal because it has not asked the court to overturn lower courts’ decisions.

She also expressed doubts about BLAG’s standing, saying separation of powers “will not be meaningful” if Congress stays out of the defense of a statute unless it thinks the executive branch is doing its job badly.

Clement maintained BLAG has standing because the House has an interest in preserving a law if the executive branch determines it won’t defend the measure in court.

“The House’s [purpose] is to pass legislation, and if it’s going to be repealed, only be repealed through a process in which the House participates,” Clement said.

Associate Justice Sonia Sotomayor, an Obama appointee, expressed skepticism that BLAG has standing to defend DOMA in court.

“But the appointment of BLAG is strange to me because it’s not in the statute, it’s in the House rules,” Sotomayor said.

Deputy Solicitor General Sri Srinavasan argued the court has jurisdiction to defend DOMA, pointing to court precedent created under INS v. Chadha, an immigration-related case that came before the court in 1982. Srinavasan also said the U.S. government still suffers aggreivement, which allows it to appeal the case.

Associate Justice Antonin Scalia expressed displeasure with the Justice Department’s decision to stop defending the law, creating a situation where it is appealing a case that was decided in its favor.

“I’m wondering if we’re living in this new world where the attorney general can simply decide, yeah, it’s unconstitutional, but it’s not so unconstitutional that I’m not willing to enforce it, if we’re in this new world, I don’t want these cases like this to come before this court all the time,” Scalia said.

It’s difficult to say if the court will rule on the basis of standing because justices challenged the views of whichever attorney was speaking — whether they were arguing in favor of standing or not. A ruling on this basis would likely have a more limited impact on gay couples as opposed to a nationwide ruling striking down DOMA.

Top photo: The United States Supreme Court (via flickr.com/frted, CC 3.0)

This story was originally published by the Washington Blade and is republished here with permission. To read the story from its original source, please click here.


Supreme Court hears oral arguments on Prop 8

Tensions were high at the U.S. Supreme Court on Tuesday as justices hammered attorneys with tough questioning on prospective rulings on the constitutionality of California’s Proposition 8 — with a particular emphasis on inquiries about standing.

Within moments of the opening of the oral arguments in the Prop 8 case, known as Hollingsworth v. Perry, justices interrupted both Charles Cooper, who is arguing in favor of Prop 8, and Ted Olson, who is arguing against it on behalf of two plaintiff gay couples, with questions about standing.

Anti-gay groups, such as ProtectMarriage.com, are defending Prop 8 in court because California officials — Gov. Jerry Brown and Attorney General Kamala Harris — have elected not to do so. Whether these groups have standing to defend the law is a question posed by the court.

Associate Justice Sonia Sotomayor, who was appointed by President Obama, was among those asking questions about standing, saying it’s “counterintuitive” for a state to grant standing to proponents of a ballot initiative because their views are in support of the measure.

Cooper said the California Supreme Court in 2011 ruled that proponents of a ballot initiative like Prop 8 bear a responsibility to defend the measure in court should state officials decline to do so. Otherwise, public officials could effectively veto a measure by declining to defend it.

But Olson, a former U.S. solicitor general under George W. Bush, disputed the notion that anti-gay groups have standing in the Prop 8 case because they are not elected officials.

“They haven’t been appointed; they have no fiduciary responsibility to the state,” Olson said. “Under Article III, it takes more than that [to have standing].”

The issue of standing is seen as crucial because if the court determines that anti-gay groups don’t have standing to defend Prop 8, the ruling of U.S. District Judge Vaughn Walker would remain in place and marriage rights for same-sex couples would likely be restored to California.

Associate Justice Samuel Alito expressed skepticism during the oral arguments that proponents of Prop 8 lack standing to defend their ballot measure, indicating someone should be able to defend the statute if public officials decline to do so.

“The whole process [of ballot initiative] would be defeated if the only people who could defend an initiative would be public officials,” Alito said.

Alito and other justices known for being conservative tipped their hand on the way they may rule in the case.

Associate Justice Antonin Scalia said the legalization of same-sex marriage would necessitate the legalization of gay adoption, and sociologists have “considerable disagreements” on whether that causes harm to a child.

“I don’t think we know the answer to that question,” Scalia said.

It’s unclear to which disagreement Scalia was referring. Just last week, the American Academy of Pediatrics endorsed same-sex marriage, saying it helps children. Following Scalia’s remarks, Associate Justice Ruth Bader Ginsburg reminded Scalia that adoption isn’t at issue because California has legalized adoption rights for gay couples.

Alito, appointed by former President George W. Bush, cautioned against a ruling in favor of same-sex marriage, which he said was “newer than cell phones and the Internet.”

“There isn’t a lot of data about its effect,” Alito said. “It may turn out to be a good thing. It may turn out not to be a good thing.”

U.S. Solicitor General Donald Verrilli, who was granted time to time speak during the arguments earlier this month, argued against Prop 8 on behalf of the Obama administration, saying Prop 8 should be struck down because gay people have “suffered a history of discrimination” and the law should be subject to heightened scrutiny.

Verrilli said the Obama administration is “not taking a position” on whether same-sex marriage should be legalized throughout the country as a result of the ruling — but said the door could be open to such a ruling in future cases. Instead, Verrilli advocated the idea of a “nine-state solution. Under that principle, states that offer domestic partnerships, but not same-sex marriage, would have to allow gay couples to enter into the union of marriage.

The solicitor general said California’s own domestic partnership law providing gay couples legal benefits but not the distinction of marriage “undercuts” any rationale for withholding the label of marriage for gay couples.

But the idea of a nine-state solution seemed distasteful to justices. Associate Justice Stephen Breyer, an appointee of President Bill Clinton, noted that states that provide absolutely no legal recognition to gay couples provide more harm to gay couples than the states that offer domestic partnerships.

Verrili also maintained the Obama administration isn’t taking a position on whether proponents of Prop 8 have standing to defend the law, but said the notion they lack Article III standing in court is the stronger argument.

Top photo: The United States Supreme Court (via flickr.com/frted, CC 3.0)

This story was originally published by the Washington Blade and is republished here with permission. To read the story from its original source, please click here.