The American public may have a false advertising claim against the Supremes.
The justices galvanized a media frenzy by convening this week to consider whether the Constitution protects gay marriage. For a second consecutive day, though, some members of the court wrapped themselves in legal curlicues as they questioned why they even scheduled what had been billed as a civil rights doubleheader of historic proportions.
On Tuesday, Justice Anthony Kennedy, the presumed swing vote on an ideologically divided nine-person bench, suggested that he and his colleagues may have acted prematurely by agreeing to decide whether California’s ban on gay marriage violates the constitutional guarantee of equal protection. Today’s procedural snafu: whether the Constitution gives the Supreme Court the authority to pass judgment on the federal Defense of Marriage Act. Enacted in 1996, DOMA defines marriage as a heterosexual union and denies federal benefits to gay couples wed under state law.
The problem with the DOMA case is that the original plaintiffs challenging the law and defendant, the Obama Administration, emphatically agree on the outcome: that DOMA should be struck down. So, one wonders, what is there to decide? Another wrinkle: It’s not 100 percent clear why the defenders of DOMA, a group of congressional Republicans, have “standing” to prop up the anti-gay statute signed into law by former President Bill Clinton (who, by the way, now condemns it as discriminatory).
DOMA denies gay couples the ability to file joint tax returns, claim a spousal exemption from estate taxes, or collect Social Security survivor’s benefits. Edie Windsor, an 83-year-old New Yorker, filed suit to fight a $363,000 federal estate tax bill imposed after the 2009 death of her spouse, Thea Clara Spyer. Windsor wouldn’t have owed the tax if Spyer had been a man.
“One might well ask, what kind of marriage is this?” asked Justice Ruth Bader Ginsburg, who made her skepticism of DOMA’s constitutionality obvious. So did three other Democratic appointees.
Midway through the two-hour argument, several other members of the court diverted the discussion to procedural issues, such as why the Obama Administration decided in 2011 not to defend the law in court. “I don’t see why he doesn’t have the courage of his convictions,” Chief Justice John Roberts complained of the president. Roberts suggested that the way to resolve the benefits conflict might be for the administration simply not to enforce it, rather than seek a constitutional decision from the judiciary.
If the justices concluded that the federal government and Windsor are really on the same side of the suit, the high court might leave in place a lower-court ruling favoring Windsor. That, however, might not clarify the continuing validity of DOMA in other instances. Nine states and the District of Columbia now recognize same-sex marriage.
Congressional Republicans defending the measure argue that it promotes traditional marriage and makes it more likely that children will grow up in a healthy environment. Justice Kennedy seemed unimpressed by that position. He noted an “historical commitment” of the issue of marriage to the states.
If it were up to big business, DOMA would die a quick death. Nearly 300 companies, including Goldman Sachs (GS), Citigroup (C), Amazon (AMZN), and Pfizer (PFE), have urged the justices to strike down the law, in part because of the administrative burdens it places on employers, which have to set up parallel benefits systems for gay and straight employees.
While a Supreme Court decision not to issue a sweeping ruling in one or both of the gay marriage cases would leave a lot of court watchers feeling cheated, this week’s arguments would not, in the end, have been a waste of time. Bill Clinton is not the only person to have changed his mind on the issue. President Obama has also dropped his opposition to gay marriage. The Supreme Court’s consideration of the matter has shined a bright light on such switches. More broadly, the fuss at the court has underscored the drastic swing in popular opinion toward supporting homosexual rights since 1996, when DOMA overwhelmingly passed the House and Senate.