WASHINGTON – Several U.S. Supreme Court justices, including swing vote Anthony Kennedy, questioned the validity of the Defense of Marriage Act (DOMA) in oral arguments, signaling they may be ready to strike down the federal law defining marriage as between a man and a woman.
The high court heard arguments Wednesday (March 27) for the second consecutive day on the contentious issue of same-sex marriage. While Tuesday’s arguments dealt with a California initiative that defined marriage as only between a man and a woman, Wednesday’s debate regarded Congress’ 1996 law that used the same definition for federal purposes.
The justices have several options in resolving the two cases, which likely will be decided in June before the court adjourns for the summer. The possibilities range from affirming laws protecting traditional marriage to legalizing same-sex marriage throughout the country. Some observers predict the court will agree on a ruling somewhere between those possibilities.
Photo by Doug Carlson
Outside the Supreme Court (currently under renovation), marriage advocates stood their ground during March 26-27 hearings on two gay marriage cases. The monumental debate now moves inside the chambers of the court’s nine justices, who are expected to release their decisions this summer.
Wednesday’s arguments concerned only part of DOMA, which received overwhelming approval and was signed into law by President Clinton, who recently said he now opposes the measure. Lower courts struck down the law’s Section 3, which defines marriage as a heterosexual union for purposes of such matters as federal benefits. Section 3 prohibits the federal government from recognizing same-sex marriages. DOMA’s Section 2, which was not challenged in this case, authorizes states to refuse to recognize gay marriages performed in states where such unions are legal.
Some associate justices questioned the federal government’s role in enacting DOMA, since marriage is traditionally the domain of state governments. Kennedy, who often votes with the court’s conservatives but has sided with its liberals on some issues championed by homosexual activists, charged DOMA with inconsistency.
Kennedy told DOMA advocate Paul Clement, “You said … Congress wanted to help the states. But then [in] Section 3 … Congress doesn’t help the states which have come to the conclusion that gay marriage is lawful. So that’s inconsistent.”
Clement disagreed, saying Congress aided the states “in the sense of having each sovereign [state] make this decision for themselves.” Clement said the federal government was sovereign on the matter.
Kennedy said Congress was telling the states it will help them “if they do what we want them to.”
Clement told Kennedy, “No state loses any benefits by recognizing same-sex marriage. Things stay the same.”
Associate Justice Sonia Sotomayor challenged Clement, asking, “But what gives the federal government the right to be concerned at all at what the definition of marriage is? … [Y]ou’re saying, we can create this special category – men and women – because the states have an interest in traditional marriage that they’re trying to protect. How do you get the federal government to have the right to create categories of that type based on an interest that’s not there but based on an interest that belongs to the states?”
One way to “stay out of the debate,” Clement said, and “let the democratic process deal with this is to just say, ‘Look, we’re going to stick with what we’ve always had, which is [the] traditional definition [of marriage].”
U.S. Solicitor General Donald Verrilli contended DOMA violated the Constitution’s equal protection rights and criticized Clement’s argument that Congress passed DOMA for purposes of uniformity. “It was enacted to exclude same-sex married, lawfully married couples from federal benefit regimes based on a conclusion that was driven by moral disapproval,” he told the justices in arguing for invalidation of Section 3.
Associate Justice Elena Kagan raised the question of whether “animus,” or hostility, was a basis for DOMA’s passage. When Verrilli and Roberta Kaplan, also arguing against Section 3, cited “moral disapproval” as the reason for the law, Chief Justice John Roberts challenged their contentions.
“So that was the view of the 84 [of 100] senators who voted in favor of it,” Roberts asked Verrilli, “and the president who signed it? They were motivated by animus?”
Verrilli replied by saying “it may well not have been animus or hostility.”
As it did in Tuesday’s arguments, the court not only considered the constitutionality of the law in question, but it also weighed whether the court was in a position to rule on the case. The justices spent almost half of the nearly two hours of arguments hearing from lawyers debating whether the House of Representatives leadership had standing to defend DOMA after President Obama’s administration refused to advocate for it and whether the high court has jurisdiction over the appeal since the Department of Justice agreed with the Second Circuit Court of Appeal’s invalidation of the law.
The House leadership’s Bipartisan Legal Advisory Group, represented by Clement, intervened in defense of DOMA after Obama declared his opposition to the law. As a result, the Department of Justice not only has refused to defend DOMA but has opposed it in court.
Richard Land, Southern Baptist ethicist and church-state specialist, has said he hopes the Supreme Court rules in favor of traditional marriage in both of the cases argued Tuesday and Wednesday, but he suspects the court will decide to leave the issue in the hands of the states.
“If they were to rule in favor of same-sex marriage in both cases or against same-sex marriage in both cases, they make the role of the court the issue. And the Roberts court does not want to make the court the issue,” said Land, president of the Ethics & Religious Liberty Commission (ERLC).
The path likely for the current court led by Roberts is to uphold the California initiative but defer to each state’s definition of marriage in the DOMA case, he predicted.
“[T]hey make both sides unhappy, but they don’t outrage both sides,” Land told Baptist Press.
The ERLC was among many organizations that signed onto friend-of-the-court briefs in support of DOMA. Many foes of DOMA also filed competing briefs.
In friend-of-the-court briefs before the arguments, advocates for traditional marriage warned the court about the repercussions of legalizing same-sex marriage throughout the country. They said a ruling in support of gay marriage would:
Harm religious freedom, possibly resulting in the loss of tax-exempt status by churches and other religious organizations.
Undermine the legal reasoning for prohibiting polygamous marriages.
Send the message children do not need both fathers and mothers.
Hundreds of people – overwhelmingly in support of same-sex marriage – rallied in front of the court building Wednesday. They also did so Tuesday, when advocates for traditional marriage participated in a March for Marriage to the Supreme Court that included a rally on the National Mall.
The states that have legalized same-sex marriage are Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Washington and Vermont. Gay marriage also is legal in the District of Columbia.
The DOMA case is United States v. Windsor.
(EDITOR’S NOTE – Tom Strode is Washington bureau chief for Baptist Press. With reporting by Michael Foust, associate editor of Baptist Press.)