- The Washington Times - Wednesday, March 27, 2013

The federal government has a “powerful interest” in a single, uniform definition of marriage, even if it excludes gay unions that are legal in individual states, the lawyer defending the federal Defense of Marriage Act said Wednesday as the Supreme Court concluded two days of landmark arguments on gay marriage.

But Paul D. Clement, hired by the House of Representatives to argue for DOMA after the Obama administration refused to do so, faced often skeptical questions from the justices in nearly two hours of arguments centering on the clash between the law’s traditional definition of marriage between one man and one woman and a growing number of states that now sanction gay unions.

The justices, in particular key swing vote Justice Anthony M. Kennedy, seemed to be struggling with the impact that DOMA had in an area traditionally reserved for the states. As several justices noted, the DOMA statute affects more than 1,100 federal laws, programs, taxes and benefits that differ for married and single people.

The broad sweep of DOMA “in our society means that the federal government is intertwined with citizens’ day-to-day life,” Justice Kennedy said. This puts the federal law “at real risk of running in conflict with what was always thought to be the essence of state police power, which is to regulate marriage, divorce, custody.”

Justice Ruth Bader Ginsburg added that for the federal government to tell legally married, same-sex couples they’re ineligible to file a joint tax return, take marital deduction or have surviving-spouse Social Security benefits, “One might well ask, what kind of marriage is this?” The result, she said, would be “two kinds of marriage: the full marriage and then this sort of skim-milk marriage.”

But as with Tuesday’s equally dramatic arguments over California’s Proposition 8 statute that bans gay marriage, the justices gave no clear indication of how they would rule on these gay marriage cases. And as in Tuesday’s arguments, the justices spent a considerable amount of time considering legal off-ramps that would allow them not to decide the cases, or to issue a far less sweeping ruling than many gay marriage advocates had hoped.

SEE ALSO: Obama administration under fire in gay marriage arguments

The justices are expected to issue their rulings by June.

The session again inspired colorful, sign-filled demonstrations for and against gay marriage on the plaza outside the Supreme Court building.

Alexandria lawyer Jim McDonald said he would not oppose civil unions for same-sex couples, but not marriage: “I think whatever my wife and I are doing is not the same to what a homosexual couple does, whether they were involved in a wedding or not. I don’t think the word marriage is appropriate for the coupling of people of the same sex.”

But Dalton Collins, a gay rights activist studying law at the University of the District of Columbia, argued that “every American deserves to be treated equally under the law. … Justice is supposed to be blind.”

Estate tax bill

Wednesday’s case, United States v. Edith Windsor, revolves around an estate tax bill levied by the IRS against Ms. Windsor, now 83, after the death of her lesbian partner. Ms. Windsor was forced to pay $363,000 in federal estate taxes because the government would not recognize her 2007 Canadian marriage to her late partner, Thea Spyer.

SEE ALSO: LATEST UPDATES: Supreme Court weighs gay marriage, DOMA on second day

Mr. Clement said rationale behind the traditional marriage definition approved overwhelmingly by Congress and signed by President Clinton was “all it has ever purported to be” — a definitional provision.

“When Congress passed every one of the 1,100 statutes affected by DOMA’s definition, the Congress that was passing that statute had in mind the traditional definition,” he said.

DOMA tells states “we’re going to stick with what we’ve always had, which is traditional definition” of marriage, he said. “No state loses any benefits by recognizing same-sex marriage. Things stay the same.”

But it appeared that at least five justices — Justice Kennedy and the court’s four more liberal members — had great difficulty accepting Mr. Clement’s line of reasoning, even as nine states and the District of Columbia have now legalized same-sex marriage.

“What gives the federal government the right to be concerned at all with what the definition of marriage is?” asked Justice Sonia Sotomayor.

Another issue explored by justices was the “sea change” in the popular attitudes about gay marriage since 1996, and whether that was the result of the “political effectiveness” of gay-rights advocates.

Attorney Roberta Kaplan, representing Ms. Windsor, downplayed the influence of advocates. The nation’s sea change on gay marriage is due to a “societal understanding” that came from places beyond political power of gay people, she said.

Chief Justice John G. Roberts Jr. was skeptical: “As far as I can tell, political figures are falling over themselves to endorse your side of the case.”

The political-power question is important because one of the tests to give sexual orientation a heightened level of scrutiny is that the group is politically powerless.

The impetus for DOMA — especially the extent of “moral disapproval” noted in a 1996 House report accompanying its debate on the measure — was also examined.

“Is that what happened in 1996?” Justice Elena Kagan pointedly asked Mr. Clement.

Such language appears in the House report, he replied, “and if that’s enough to invalidate the statute, then you should invalidate the statute. But that has never been your approach.”

Ms. Kaplan agreed that “moral disapproval” was a factor in the 1996 vote — DOMA “was enacted to defend against the marriages of gay people,” she said. But when asked by Chief Justice Roberts if she believed that 84 senators who voted for DOMA based their vote on moral disapproval of gay people, she softened her response. “I’m not saying it was animus or bigotry; I think it was based on a misunderstanding of gay people.”

Questioning ‘standing’

Earlier in the session, the court queried Mr. Clement and two other attorneys on whether the Windsor case was properly before them, and whether the House of Representatives had legal “standing” to defend DOMA in light of the Obama administration’s refusal to do so.

Mr. Clement argued that the House has historically had the ability to defend its laws, especially when the executive branch declines to do so.

But court-invited amicus Harvard Law School professor Vicki C. Jackson said the House of Representatives had no “injury,” and the Obama administration wasn’t asking the court to redress any injuries either. “There is no justiciable case before this court,” said Ms. Jackson, adding that it should “await another case, another day to decide this question.”

Deputy Solicitor General Sri Srinivasan, arguing for the administration, said the high court should issue a ruling on DOMA, and that there is precedent for the executive branch to not defend a law even while it was enforcing it. But Chief Justice Roberts challenged that line of argument, saying the high court was being asked to do something “totally unprecedented.”

Justice Kennedy also objected, saying, “I’m wondering if we are living in this new world where the attorney general can simply decide, ‘Yeah, it’s unconstitutional, but it’s not so unconstitutional that I’m not willing to enforce it.’”

The plaintiff speaks

After Wednesday’s session, Ms. Windsor told reporters she thought the arguments over her case “went beautifully.”

The justices took the case “very seriously,” she said, adding that the session was a “spectacular event for my life.”

Ms. Kaplan said she was “hopeful” following the oral arguments, and expressed skepticism that — as many legal observers have speculated — the high court might avoid a sweeping decision.

The court “has an obligation to decide” such momentous legal and social questions, Ms. Kaplan told reporters, adding she did not see evidence in the questioning that the justices were shying away from a decision.

Mr. Clement did not talk to reporters after the arguments.

Ms. Windsor repeatedly remarked on the significance of the day, noting that she still had not publicly revealed her sexuality when she married her late partner.

“I’m talking to you guys freely,” she told reporters. “I’d have been hiding in the closet 10 years ago.”

• David R. Sands, Joshua Eferighe and Tom Howell Jr. contributed to this report.

• Cheryl Wetzstein can be reached at cwetzstein@washingtontimes.com.

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