Today SCOTUS heard arguments on U.S. v. Windsor. In my post yesterday on Proposition 8, I quoted John Eastman’s sorting of the legal issues of both cases. Here are some of his specifics on Windsor:
The plaintiff in Windsor, Edith Windsor, contends that Section 3 deprived her of the estate-tax spousal deduction because she and her lesbian partner, though legally married in Canada and then domiciled in New York, were not recognized as married for purposes of federal law. The U.S. District Court for the Southern District of New York held that Section 3 of DOMA [Defense of Marriage Act] violated the Equal Protection component of the Fifth Amendment’s Due Process Clause. Even before the case was heard by the Court of Appeals for the Second Circuit, requests for Supreme Court review were filed, but the Second Circuit considered the appeal quickly, rushing out a decision affirming the district court’s judgment that Section 3 of DOMA was unconstitutional.
The Second Circuit applied “heightened scrutiny,” a legal doctrine normally reserved for invidious classifications such as those based on race, nationality, and gender. This was a first among the federal appellate courts, and the judges on the Second Circuit panel that rendered the decision were split two to one. Although Windsor and the other DOMA cases currently pending before the Supreme Court all challenge Section 3, the Court’s ruling will likely implicate the constitutionality of Section 2 as well….
The Heritage pamphlet, What You Need To Know About Marriage: Questions and Answers Driving the Debate, states:
Q. Shouldn’t same-sex partners get benefits like others?
A. We can address specific concerns through specific policies without redefining marriage. For example, the central issue in the upcoming Supreme Court case on the Defense of Marriage Act is the estate tax—the tax you may pay when a friend or family member leaves you assets from their estate. This dispute could have been avoided years ago when Congress had the chance to enact fairer tax policy by eliminating the estate tax and allowing Americans to pass on their wealth, estate-tax free, to their loved ones.
We should resolve specific problems through specific policies. We should have sound tax policy as well as sound marriage policy, and that means recognizing marriage as the union of one man and one woman.
The transcript of today’s oral argument in United States v. Windsor, the Defense of Marriage Act case, ranges widely across both jurisdictional issues and the merits of DOMA’s constitutionality. I think the jurisdictional issues are much harder to sort out than the merits are. And it seems clear from the amount of time devoted to these issues, and the character of the justices’ questions and their answers to the responses, that they regard them as tougher than in yesterday’s Perry case on Prop 8. Much of the trouble is caused by the Obama administration’s decision to adopt the untenable position that it would argue in court that Section 3 of DOMA (governing the meaning of marriage in federal law) is unconstitutional, yet continue to enforce it anyway….
In Justice Scalia: So the Government Can Just Stop Enforcing the Law? Nathaniel Botwinick posted this comment from the justice:
It has not arisen very often in the past, because in the past, when I was at the Office of Legal Counsel, there was an opinion of the Office of Legal Counsel, which says that the Attorney General will defend the laws of the United States, except in two circumstances: Number one, where the basis for the alleged constitutionality has to do with presidential powers….The second situation is where no possible rational argument could be made in defense of it. Now, neither of those situations exists here. And I’m wondering if we’re 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.” If we’re in this new world, I don’t want these cases like this to come before this Court all the time. And I think they will come all the time if that’s the new regime in the Justice Department that we’re dealing with.
Assuming the Court reaches the merits of DOMA, the questions actually become much easier. To the observations Ed has made, I would add that Chief Justice Roberts distinguished himself in his questioning on the merits today.
Roberts twice asked counsel whether one must see “animus” in the votes of the 84 senators (and, implicitly, also the many more House members) who voted for DOMA. Both SG Verrilli and Windsor’s counsel Roberta Kaplan went on the record saying that “animus” was not or need not have been the driving force behind the passage of DOMA. They tried a softer line, that attitudes toward gay couples suffered from an “incorrect understanding” in 1996. But real animus–meaning something “irrational”–would seem to be necessarily present in order for the Court to find DOMA unconstitutional under the rational basis test. So this was a significant concession.
Then the chief justice pursued a line of questioning with Windsor’s counsel that probed whether some form of “heightened scrutiny” is merited for the analysis of whether homosexual couples were treated wrongly under the equal protection clause. He wanted to know if all the movement in favor of same-sex marriage in recent years–and even in recent weeks–hasn’t been precisely because gays and lesbians and their allies are extremely powerful politically. Political powerlessness is a key component in a judgment that some test more stringent than rational basis will be used. If, as Kaplan argued, there has been a “sea change in people’s understandings,” Roberts said, it’s hard to see where that came from, “if not from the political effectiveness of–of groups on your side of the case” (pp. 108-09).
Lots of political power = no need for heightened scrutiny. Absence of irrational animus = no problem under the rational basis test. As I said, on the merits this one is easy. Which is, of course, never to say that there aren’t five justices who could get this badly wrong!
The rulings on these cases probably won’t be handed down until June. Although law, logic and history all uphold and defend conjugal marriage, this is also a spiritual battle, and the desires and the intents of man blind him to God’s truth and cause him to defy God and the witness God gives to him in the way marriage benefits individuals and society. Which is, of course, why we should continue to pray for God’s help and mercy as the justices deliberate these cases amongst themselves.