‘Skim-Milk Marriage’ Doesn’t Sit Well with the Supreme Court
The Supreme Court of the United States on Wednesday heard arguments against the federal Defense of Marriage Act (DOMA). Here’s what you need to know.
At Wednesday’s historic hearing surrounding the constitutionality of DOMA, five of the justices, the four liberal members and swing vote Justice Anthony M. Kennedy, expressed various doubts as to how DOMA can be squared with the freedoms and rights all Americans enjoy.
Justice Kennedy Swings to the Left
“The question is whether or not the federal government under a federalism system has the authority to regulate marriage,” Justice Kennedy said, highlighting that it was not until DOMA that the federal government had ever taken such an invasive stance on what defines marriage.
The case before the court is Windsor v United States, where 83-year-old Edith Windsor is challenging DOMA, the law enacted by Congress which bans the federal government from recognizing same-sex marriages. This ban meant that even though her (out-of-state) marriage to her late spouse Thea Spyer was recognized by the New York state when Spyer died in 2009, Windsor was forced to pay $363,000 in federal estate taxes on her inheritance of her wife’s estate because federal law does not recognize their marriage.
The defense in this case, Paul Clement and the team acting on behalf of the House’s Bipartisan Legal Advisory Group (BLAG), argued that DOMA creates a definition of marriage and therefore allows for consistency. This, he argued, was a legitimate interest for the law.
Justice Kennedy responded that because some states have recognized marriage equality but the federal government cannot recognize those marriages, the states are required to discriminate in several ways despite wishing to grant equality. He went on that this has in fact created a legal landscape fraught with contradictions, such as the one that landed Windsor with a massive estate tax bill. “It’s not really uniformity,” Kennedy added, saying that this puts the federal government at odds with state autonomy.
Quotable Ginsburg and Notable Kegan
Justice Ruth Bader Ginsburg perhaps provided the stand-out quote for equality advocates, saying that it appeared to her that the federal law created a two-tiered system of marriage.
“There are two kinds of marriage,” she said. “Full marriage and the skim-milk marriage.”
However, it was Justice Elana Kegan who struck a death blow to one of Clement’s key arguments, that DOMA wasn’t discriminatory but rather served a legitimate interest, when she read from the House report which accompanied the law, quoting that Congress in passing the law wished to express its “moral disapproval of homosexuality.”
Kegan expounded that when Congress specifically notes it is targeting a group, this “sends up a pretty good red flag” that discrimination may be afoot.
Clement went on to concede that were the court to rule solely on this basis, DOMA could not stand. “If that’s enough to invalidate the statute, you should invalidate the statute,” he said. However, he then argued Congress had other reasons for passing DOMA, including the encouraging of heterosexual marriage for the purposes of child rearing.
Conservative Justices Take Time to Attack Obama
Chief Justin John Roberts raised his puzzlement over why this case had even reached the Supreme Court, given that the statute had been invalidated by two lower courts and that the Obama administration has already decided the statute is unconstitutional.
This, however, Roberts used as a moment to attack the administration, asking why Obama was still enforcing the rule if he believed it to be unconstitutional, saying, “I don’t see why he doesn’t have the courage of his convictions.”
Justice Scalia, too, saved his most pointed barbs for this topic, saying that in being asked to take on this case, the Supreme Court was reaching into “unprecedented” territory.
What Can We Take Away From Today’s Supreme Court DOMA Hearing?
At least five of the justices appeared to think there is a substantive issue before them, that DOMA discriminates against gay people and that at the very least, the ban violates state sovereignty.
With Justice Kennedy appearing to side with the liberal wing of the Supreme Court, it seems likely that the conservative justices’ concerns about taking on the case will be absorbed and we will get some kind of a ruling.
The scope of that ruling remains in question, however: for instance, whether the court will rule broadly enough to strike down other similar statutory bans or whether it will go to lengths to preserve state bans on same-sex marriage and allow the issue to play out at the state level unencumbered by federal interference. Regardless, DOMA Section 3 appears tonight to be on life-support.
As for plaintiff Edith Windsor, on leaving court today, she said, “I felt very respected, and I think it’s gonna be good.”
The court will return its decision in June.
Image credit: Thinkstock.