DOMA may be doomed.
The Supreme Court on Wednesday held hearings on the constitutionality of the Defense of Marriage Act, which denies federal benefits to gay couples and defines marriage as being between one man and one woman.
The case was brought by Edie Windsor, an 83-year-old New Yorker who married Thea Clara Spyer in 2007. After the latter’s death in 2009, Windsor was denied an exemption of federal estate taxes and was handed a $363,000 estate tax bill. Under the current law, heterosexual spouses can transfer their wealth tax free.
The nation’s highest court has until the end of June to issue a ruling. In the meantime, here’s what happened during oral arguments Wednesday:
1. Most of the justices questioned the constitutionality of DOMA
Justice Ruth Bader Ginsburg said the law—enacted in 1996—essentially creates two castes of marriage—“full marriage” and “skim milk marriage.” Justice Anthony Kennedy, considered by some to be a swing vote on the issue, also raised concerns, asking if Congress had the right to say what marriage is instead of leaving it up to the states. Justice Sonia Sotomayor echoed that sentiment, asking “What gives the federal government the right to be concerned at all about the definition of marriage?”
2. Conservative justices skewered Obama
In February 2011, the Obama administration said it would no longer defend the law, but wanted the Supreme Court to come up with a decision. Justice Antonin Scalia said it was a “new world” when the attorney general can declare a law to be unconstitutional but still enforce it. “I don’t want these cases 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.” Scalia added. Chief Justice John Roberts echoed that sentiment, saying it was “unprecedented.”
3. Paul Clement gave an odd DOMA defense
Clement, a former solicitor general under George W. Bush, defended DOMA on behalf of House Republicans. He said the government has a “legitimate interest” in the case because approximately 1,000 laws were passed since DOMA went into effect with the notion it applied to “traditional marriage.” He argued the law was meant to provide uniformity—not to exclude same-sex couples. He gave the example of military families who might “resist” being transferred from West Point to Fort Sill because they might lose their benefits. West Point is in New York, where gay marriage is legal, while Fort Sill is in Oklahoma, where gay marriage is not recognized. ”The federal government uniquely, unlike the 50 states, can say, well, that doesn’t make any sense, we are going to have the same rule.”
4. Roberts questioned gays’ minority status
The Chief Justice said he didn’t understand how gay Americans can be a minority group that suffers discrimination because they have a poweful lobby and added that a number of politicians “have been falling all over themselves” to vocally support same-sex marriage. Windsor’s attorney, Roberta Kaplan, shot back “The fact of the matter is, Mr. Chief Justice, is that no other group in recent history has been subjected to popular referenda to take away rights that have already been given or exclude those rights, the way gay people have.”
5. Edie Windsor is optimistic
The woman at the center of the Supreme Court battle spoke to the press after the hearings, predicting the result is “gonna be good.” Windsor shared her love story with Spyer, noting many people have since asked her “Why get married?” Windsor noted, “It turns our marriage is different…It’s a magic word. Anyone who does not understand why we want it and why we need it…it’s magic.”