Parsing the Supreme Court arguments on Prop. 8, DOMA cases

The Supreme Court oral arguments in Hollingsworth v. Perry and United States v. Windsor made for two of the most exciting and important days in recent LGBT history. Mary L. Bonauto, the Civil Rights Project Director at Gay & Lesbian Advocates & Defenders (GLAD) was there. Though not one to predict outcomes in court cases, Bonauto was happy to share her analysis of the proceedings.

She's optimistic about United States v. Windsor, the challenge to Section 3 of the federal Defense of Marriage Act, better known as DOMA. Based on the very active questioning at the March 27 arguments, Bonauto observed at least five justices who expressed concerns about DOMA's constitutionality because of its "uniqueness in federal law" as a cross-cutting definition applicable through the entire US Code and its "singularity" in wiping out only the marriages of same-sex couples for federal purposes.

Paul Clement, the attorney hired by the U.S. House leadership to defend DOMA, argued that a "federal interest in uniformity" justifies DOMA. "His argument was that DOMA creates uniformity by treating a same-sex couple from Massachusetts like one from Oklahoma," Bonauto explained. "Of course, the difference between the two states is in their marriage laws, and several justices were quick to observe that the only uniform federal rule has been that the federal government defers to the states' determination of who is married."

She added that Justice Breyer, among others, also questioned whether uniformity explains why the 1996 Congress singled out the marriages of same-sex couples for disrespect under federal law: Why not deny respect to marriages from states where people don't have blood tests? Or anyone under age 18? Wouldn't those distinctions be arbitrary he asked, and Mr. Clement had no answer.

In one of the more dramatic moments, Bonauto recalled, Justice Kagan questioned whether a concern for uniformity really had anything to do with DOMA's passage, and then read from the 1996 House Judiciary Committee Report on DOMA citing "disapproval of homosexuality" as one of DOMA's purposes. Justice Ginsburg later spoke of "rank discrimination."

"Of course both Windsor and Perry - which challenges the constitutionality of California's Proposition 8 - are critically important, not only because they are about access to marriage and equal treatment of our marriages," said Bonauto, "but because they will tell us so much about whether the grand promises of equal protection and liberty for all can eradicate official discrimination against LGBT people's families."

GLAD's marriage work continues as we seek to secure Rhode Island as the 6th New England state with marriage equality. And ever since same-sex couples began marrying in 2004 as a result of our win in Goodridge v. Dept. of Public Health, we have seen first-hand how DOMA inflicts harm by treating married same-sex couples as single for all federal purposes, including for vital protections involving social security, health insurance, family medical leave, and protections for active duty military and veterans.

Eradicating DOMA's double standard is why we litigated two DOMA cases of our own, Gill v. Office of Personnel Management and Pedersen v. Office of Personnel Management. The cases are currently on hold as we await the Supreme Court's ruling in Windsor, but Mary lent her substantial expertise on DOMA (along with others on the GLAD DOMA team) to the Windsor legal team by coordinating the amici curiae - "friend of the court"- briefs.

In terms of case outcomes, the most favorable outcome is obviously a ruling striking down DOMA Section 3 in toto on equal protection grounds. Such a precedent would be a condemnation of sexual orientation-based double standards from our nation's highest court. "It could also be a split decision where it's four justices ruling against it on equal protection grounds and one justice striking it down on federalism grounds, but five of them agree on the invalidity of DOMA," Bonauto theorized. "It could also be five - or more - for equal protection. We have to wait and see."

She offered a few other scenarios, including an unlikely court ruling upholding the constitutionality of DOMA Section 3. But even then, said Bonauto, there is a path forward. The law's fate would then be in the hands of our federal lawmakers and the Respect for Marriage Act, a DOMA repeal bill, is currently pending in Congress. Yet, with ENDA still pending after two decades, "the road ahead is unpredictable at best," Bonauto added.

At the same time, the justices are also weighing if the parties before them present a "case or controversy" that allows them to weigh in and decide the question. The Justices asked that the parties address the "jurisdiction" question because the Obama administration decided to stop defending DOMA in court when it came to believe the law is unconstitutional.

Although the US is now effectively on the same side as Edith Windsor, the New York lesbian who challenged DOMA because the federal government didn't recognize her marriage to her late spouse and taxed that spouse's estate, Bonauto is hopeful that the court will reach the merits of the case. "The court can find adversity, she said, "where the lower courts found DOMA unconstitutional and ordered reimbursement to Edith Windsor from the US Treasury, and also because the President continues to enforce the law."

There were also arguments about whether the Bipartisan Legal Advisory Group, a group of U.S. House members, had "standing" - or the legal right - to take up the legal defense of DOMA after the Obama administration stopped. That group did not act for the whole House and has no particular and personal injury, but instead only a general (even if passionate) interest in DOMA being enforced.

Similarly, the Supreme Court is also weighing whether or not they have jurisdiction to hear Perry. The State of California did not appeal when Judge Vaughn Walker invalidated Prop 8, which banned same-sex marriage in the state, in August 2010. Like BLAG in the DOMA context, the proponents are not personally harmed by Prop 8. Moreover, private citizens do not normally have a basis for asserting the interests of the state itself.

Mary noted that five justices seemed "very concerned" about whether Prop. 8 proponents should have appealed Walker's District Court decision that the measure was unconstitutional to the 9th Circuit Court of Appeals, which upheld his ruling. If the Supreme Court finds that the Prop 8 proponents had no standing to appeal, the case would be dismissed, resulting in a significant victory in restoring marriage in California.

Despite all the wrangling over jurisdiction at oral argument, Bonauto thinks it would be unusual for the Court to avoid the merits of both cases. "It would be quite odd, I think, for the Supreme Court to have granted review in both of these cases and then suddenly to decide that neither of them should have been before it."

The justices have now retreated to their chambers to deliberate, digest the many party and amicus briefs filed in the cases, and exchange draft opinions. There's no predicting the outcome, though the reams of speculation and analysis that have already been written will certainly keep all of us occupied from now until we actually get a decision, mostly likely sometime in June.

Stay tuned.

Gay & Lesbian Advocates & Defenders is New England's leading legal organization dedicated to ending discrimination based on sexual orientation, HIV status, and gender identity and expression.