‘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.


Related Reading:

5 Things You Need to Know About Gay Marriage and the Supreme Court

GOP House Leadership Votes to Defend the Defense of Marriage Act

Widow Speaks Out on DOMA Win (VIDEO)

Image credit: Thinkstock.


Rhana Wyble
Rhana Wyble3 years ago

Karen H.
This was taken from last years Gallop Poll "The United States remains a largely Christian nation; more than nine in 10 Americans who have a religious identity are affiliated with a Christian religion. There has been little change in this portrait of religious identity in the U.S. from last year"

3 years ago

Del, I'm just a person who has never stopped studying, and when I was studying law, I learned about numerous antiquated laws that have never been taken off the books even though they're archaic and impossible to enforce in these modern times.

The only statement it makes about me as a person, is that I never stopped learning...and it has nothing to do with the fit of my jeans...whatever that means.

Del Rykert
Del Rykert3 years ago

MarilynB.. You might want to check the other antiquated laws that may still be on the books in your state...some of which forbid oral sex or other commonly accepted sex acts between 2 consenting adults in the privacy of their own home. You might be breaking the law!

I am surprised you are aware of the sex police and the laws they have to uphold.. Maybe your jeans don't fit as tightly as I thought. Del R.

3 years ago

'It has more to do with accetable social behavior.'

By whose standards? Your standards of acceptable may differ radically from those of other more open-minded people who are not homophobic.
I've never seen a gay couple having sex in the grocery store or doing anything inappropriate or unacceptable in public, and what they do in their own bedrooms is none of my (or your) business.

Some people think that people with Down's or autism do not have acceptable social behavior. I agree that marriage is not possible for many of them, but I've never met a gay couple with the same cognitive issues ...or the inability to function in society as people with Down's or autism.

As for euthanasia, I know that doctors push the envelope on that issue when the end of life is so near, and yes I have had a relative in hospice, and yes they were given mega-doses of morphine for the last few days of life...but it IS still illegal in my state, and not publicized so as to protect the doctor for having a humane heart. I'm a staunch supporter of euthanasia with consent, and think it should be legalized everywhere.
I also think that love is love and ssmarriage should be legal everywhere.
You might want to check the other antiquated laws that may still be on the books in your state...some of which forbid oral sex or other commonly accepted sex acts between 2 consenting adults in the privacy of their own home. You might be breaking the law!

Del Rykert
Del Rykert3 years ago

MaryilynB "which they are in god's eyes...if god has eyes."

I well realize you will have trouble accepting this but God has no eyes in the literal sense. At least God didn't when I visited. Why I know what I view as the correct path to walk and talk is the better one.

Del Rykert
Del Rykert3 years ago

MarilynB.. "Euthanasia is illegal, so if you're admitting to murder, then this is not the place,"

You apparantly have never worked with or had a family member under Hospice care?

" So tell me how a gay couple is not being responsible for their actions by getting marrie "

When and where did DOMA infer responsibilty was part of the equation? It has more to do with accetable social behavior. I just brought up that it didn't follow the natural order of intelligent life as it exist on this planet. Even elephants are more intelligent than some humans as of late.

Del Rykert
Del Rykert3 years ago

Steve. " If men or women want same-sex marriages, why should they not benefit from the same legal or economic rights you and I have? What sort of democracy do you have there? "

Well ~~ untill recently one that was run by the majority in the democracy. That is the beauty of a democracy.. It used to be run by the people and for the people... Lately thought the politicians and media have been listening to P.C. more than the views of the majority.

Del Rykert
Del Rykert3 years ago

Karen... While you claim we are not a chrisitian nation and we do not require all to follow in christian ideology we have for over 200 years required the word God and to swear on the bible in the majority of our important functions that we as a nation hold near and dear.. Heck we still have an opening prayer held in the chambers on the hill.. To insist to the contrary shows you have swallowed the swill that "P.C." has been pushing including as of late yet again the "A.P." That sure wasn't following a non religious path let alone Christian.. When I was swore in to defend and uphold all the laws of our country and protect the peoples property so help me god was included.. Was I lied to by all those sources all my life while living here?

Del Rykert
Del Rykert3 years ago

Marilyn ~~ thats why Socialism is welcomed and enjoyed by those in Canada.. Many of us in the STATES prefer our independence and freedoms in life. There are many things we take for granted in the STATES that are not acceptable in your country... I have many CANADIAN Friends that call us heathens for our (U.S. citizens) values we hold near and dear to our hearts. Thankfully we have more similarities in our cultures than differences... To infer that we should be also subjected to your controls shows the flaw in your thinking.

3 years ago

Del, booze is only sold in licensed government locations in many, if not most, parts of Canada. But...what does that have to do with ssmarriage?
Besides, what's so wrong about the government controlling the sale of alcohol? It isn't a religion, and it doesn't encroach upon what people do in their own bedrooms.