Same-Sex Marriage And The Supreme Court
4:49 pm
Tue March 26, 2013

DOMA Challenge Tests Federal Definition Of Marriage

Originally published on Wed March 27, 2013 10:15 am

After weeks and months of public debate and speculation about the legal fate of same-sex marriage, the second round of arguments takes place at the U.S. Supreme Court on Wednesday.

After hearing a challenge on Tuesday to California's ban on same-sex marriage, the justices move Wednesday to the 1996 Defense of Marriage Act, known as DOMA. The law bars federal recognition and benefits for same-sex couples married in any of the states — and there are nine currently — where such unions are legal.

There are more than 1,000 federal laws that confer benefits of one sort or another on married couples — everything from tax savings to Social Security benefits, but DOMA excludes those benefits for legally married same-sex couples.

The test case involves a couple from New York, Edith Windsor and Thea Spyer, who had been together for 42 years prior to their marriage in 2007. When Spyer died, however, the federal government, acting under DOMA, required Windsor to pay $363,000 in estate taxes that she would not have owed if her spouse had been of the opposite sex.

"If Thea had been Theo, I would not have had to pay those taxes," says Windsor. "It's just a terrible injustice and I don't expect that from my country. I think it's a mistake that has to get corrected."

At the Supreme Court on Wednesday, Windsor's lawyer, Roberta Kaplan, will tell the justices that the federal government, throughout the nation's history, has always deferred to state definitions of marriage, because regulating marriage is a state function. But because of DOMA, that traditional deference to the states doesn't exist for same-sex couples. Edie Windsor's marriage, recognized as legally valid by the state of New York, is not recognized by the federal government.

And that, Kaplan argues, creates a "second-class citizenship, or at least second-class marriages, that the Equal Protection Clause of the Constitution forbids."

The 14th Amendment guarantees all citizens equal protection of the law, and Kaplan will argue that the government has to have "a good reason" for distinguishing between gay and straight couples. Contending that DOMA supporters have been unable to justify treating legally married gay couples differently, she argues that it is unconstitutional to "allow straight married couples to have all the benefits of federal law and gay couples to have none."

Normally, the federal government defends all acts of Congress, but the Obama administration, in a rare move, has declined to defend DOMA in court and instead is siding with those challenging the law.

The House Republican leadership has stepped in to defend the statute, hiring former Bush administration Solicitor General Paul Clement to do the job. About half of the oral argument will focus on whether Congress has legal standing to defend the law in court. And because the administration agrees with Congress that it does have standing, the Supreme Court has appointed a private lawyer to argue that Congress does not.

Those defending DOMA have been strangely unwilling to make their arguments outside of the court. House Speaker John Boehner, R-Ohio, declined to be interviewed for this article, as did Clement and leading House members who voted for the law. Even Sen. Orrin Hatch, R-Utah, who filed a friend of the court brief supporting DOMA, was unavailable for an interview. The primary sponsor of the bill, former Rep. Bob Barr, R-Ga., now retired, has changed his mind and now opposes the law. President Clinton, who signed DOMA into law, has also reversed course.

Rep. Steve King, R-Iowa, however, is an outspoken DOMA supporter. Equal protection, he says, means "equal protection for a man and woman to be able to get married to each other," because "that's been the definition of marriage for thousands of years."

And as for Edie Windsor: She simply "wasn't married in the eyes of the United States Congress, according to DOMA." Under our system of federal and state shared power, King says, states are free to recognize same-sex marriages, and the federal government is free to not to recognize those marriages.

Brigham Young University Law School professor Lynn Wardle puts it this way: "Since the Constitution was drafted in 1787, it's been the federal government that has had the authority to define who is eligible for federal programs and benefits."

Wardle, who testified in support of DOMA in 1996, notes that at the time, Hawaii seemed poised to become the first state to legalize same-sex marriage, "and Congress said nope, there's a very clear consensus on what marriage is. ... It's the union of a man and a woman."

The House leadership, in its legal brief, makes similar arguments in support of DOMA. In the face of state and public debate over same-sex marriage rights, the brief says, the federal government had good reason to "retain the traditional definition" of marriage as "the uniform rule for federal-law purposes."

Like proponents of California's ban on same-sex marriage, the brief also highlights the reproductive ability of opposite-sex couples, arguing that "the core purpose and defining characteristic of the institution of marriage always has been the creation of a social structure to deal with the inherently procreative nature of the male-female relationship." This inherent difference between same-sex and opposite-sex couples is just one of the rational justifications for their unequal treatment under federal law, according to the brief.

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Transcript

DAVID GREENE, HOST:

This is MORNING EDITION, from NPR News. Good morning. I'm David Greene.

RENEE MONTAGNE, HOST:

And I'm Renee Montagne. At this hour, the U.S. Supreme Court is hearing a second round of arguments about same-sex marriage.

GREENE: The justices yesterday heard lawyers debate the constitutionality of California's ban on gay marriage. Today, it's a constitutional challenge to the 1996 Defense of Marriage Act, known as DOMA.

MONTAGNE: It bars federal recognition and benefits for same-sex couples married in the nine states where such unions are legal. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: There are more than a thousand federal laws that confer benefits of one sort or another on married couples, everything from tax benefits to Social Security benefits.

Today's case involves a New York couple, Edith Windsor and Thea Spyer, who'd been together for 42 years prior to their marriage in 2007. When Spyer died, however, the federal government, acting under DOMA, required Windsor to pay $363,000 in estate taxes that she would not have owed if her spouse had been of the opposite sex. Edie Windsor.

EDITH WINDSOR: If Thea was Theo, I would not have had to pay that. Now, that's just a terrible injustice, and I don't expect that from my country. I think it's a mistake that has to get corrected.

TOTENBERG: Representing Windsor in the Supreme Court today, lawyer Roberta Kaplan will tell the justices that the federal government, throughout our history, has always deferred to state definitions of marriage because regulating marriage is a state function. But Edie Windsor's marriage, recognized by the state of New York, is not recognized by the federal government under DOMA.

ROBERTA KAPLAN: That creates, essentially, a sense of second-class citizenship, or at least second-class marriages, that the equal protection clause of the Constitution forbids.

TOTENBERG: The 14th Amendment guarantees to all citizens the equal protection of the law.

KAPLAN: To distinguish between these two classes of marriages, you have to have a good reason so that the Constitution can allow straight, married couples to have all the benefits of federal law, and gay couples to have none.

TOTENBERG: Congress, she says, has not offered a good reason. Kaplan's adversary, in this case, is not the federal government. The Obama administration, in a rare move, has declined to defend DOMA in court, siding instead with those challenging the law.

The House Republican leadership has stepped in to defend the statute, hiring former Bush administration Solicitor General Paul Clement to do the job. And about half of today's argument will focus on whether Congress has legal standing to defend the law in court. The Obama administration agrees with Congress that it does have standing, so the Supreme Court has appointed a lawyer to argue that it does not.

Those defending the law have been strangely unwilling to make their arguments outside court. Speaker John Boehner declined to be interviewed for this broadcast, as did Clement and leading House members who voted for the law.

The original primary sponsor of the bill, former congressman Bob Barr, has changed his mind and now opposes the law. President Clinton, who signed DOMA into law, has also reversed course. Iowa congressman Steve King, however, is an outspoken DOMA supporter. Equal protection, he maintains, is not equal protection for same-sex couples to marry. And as for Edie Windsor...

REP. STEVE KING: She wasn't married in the eyes of the United States Congress, according to DOMA. Equal protection was for a man and woman to be able to get married to each other. That has been the definition of marriage for thousands of years.

TOTENBERG: Under our system of federal and state-shared power, he says, states are free to recognize same-sex marriages, and the federal government is free not to recognize those marriages. Brigham Young University Law School professor Lynn Wardle puts it this way.

LYNN WARDLE: Since the Constitution was drafted in 1787, the federal government has had the authority to define who is eligible for federal programs and benefits.

TOTENBERG: Wardle, who testified in support of DOMA in 1996, notes that at the time, Hawaii seemed poised to become the first state to legalize same-sex marriage.

WARDLE: And Congress said nope. There's a very, very clear consensus on what marriage is and in 1996, that clear consensus is, it's the union of a man and a woman.

TOTENBERG: The DOMA case is the second of two same-sex marriage cases argued this week. Yesterday, the justices heard spirited arguments about California's Proposition 8, a ban on gay marriage passed by the voters in 2008. The case has been in litigation for four years, and both sides have been looking to the Supreme Court for a vindication. Yesterday's arguments, however, seemed to suggest that neither side will win a clear-cut victory.

Justice Kennedy, widely viewed as a swing vote and potentially the deciding vote in the case, seemed to shy away from any broad ruling. These are uncharted waters, he observed, wondering whether the court might have jumped the gun in agreeing to hear the case.

(SOUNDBITE OF SUPREME COURT SESSION)

JUSTICE ANTHONY KENNEDY: I just wonder if the case was properly granted.

TOTENBERG: Indeed, the justices spent half the time allotted for argument on what might be called the boring issue - whether the case should be decided by the Supreme Court at all. California has refused to defend the ban, so the sponsors of Prop 8 stepped in to appeal the adverse rulings by the lower courts. The question is, can they do that? Do they have the legal standing to substitute themselves for the state? Moving to the question of whether same-sex couples have a constitutional right to marry, lawyer Charles Cooper - defending the ban on same-sex marriage - urged the court not to interfere in the ongoing debate.

(SOUNDBITE OF SUPREME COURT SESSION)

CHARLES COOPER: The question before this court is whether the Constitution puts a stop to that ongoing democratic debate, and answers this question for all 50 states.

TOTENBERG: But Cooper demurred when Justice Kagan asked him what harm would be inflicted on heterosexual marriage if same-sex couples were also allowed to marry. Justice Scalia pointed out that those challenging Prop 8 are arguing for a nationwide rule allowing gay marriages.

(SOUNDBITE OF SUPREME COURT SESSION)

JUSTICE ANTONIN SCALIA: I take no position on whether it's harmful or not. But it is certainly true that there's no scientific answer to that question, at this point in time.

TOTENBERG: Justice Kennedy agreed that the only evidence about the effects of gay marriage is new, spanning five years of experience compared to 2,000 years of human history. But on the other hand, he noted that the ban on same-sex marriage creates real problems for the 40,000 children living with same-sex parents in California.

(SOUNDBITE OF SUPREME COURT SESSION)

KENNEDY: And they want their parents to have full recognition and full status. The voice of those children is important in this case, don't you think?

TOTENBERG: Cooper replied that if procreation is no longer the purpose of marriage, then marriage will be refocused away from the raising of children and onto the emotional needs of adults. In light of that, asked Justice Kagan, would it be constitutional to bar marriage licenses for those over 55? Lawyer Cooper tried to dodge the question, contending that one partner in such a marriage would remain fertile. But Kagan wouldn't let him off the hook.

(SOUNDBITE OF SUPREME COURT SESSION)

JUSTICE ELENA KAGAN: I can just assure you, if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage.

(LAUGHTER)

TOTENBERG: Following Cooper's argument, Theodore Olson made the case for allowing same-sex marriage, contending that the right to marry is not society's right.

(SOUNDBITE OF SUPREME COURT SESSION)

THEODORE OLSON: It's an individual right that this court - again and again and again - has said the right to get married, the right to have the relationship of marriage is a personal right. It's a part of the right of privacy, association, liberty, and the pursuit of happiness.

TOTENBERG: Justice Scalia hammered Olson, repeatedly demanding to know when same-sex marriage became constitutional.

(SOUNDBITE OF SUPREME COURT SESSION)

OLSON: It was constitutional when we, as a culture, determined that sexual orientation is a characteristic that individuals - that they cannot control...

SCALIA: I see. When did that happen? When did that happen?

OLSON: There's no specific date in time. This is an...

SCALIA: Well, how am I supposed to know how to decide a case that...

TOTENBERG: Justice Alito noted that California gives same-sex couples all the same legal rights as married couples, but it doesn't permit gay marriage. That prompted Chief Justice Roberts to opine that the only difference, then, is a label - the word "marriage." But Olson replied hotly that some labels are special. A decision in both cases is expected by the end of June.

Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

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