DOMA Likely Going Down, With or Without Strong Precedent

by Paul Hogarth on March 28, 2013

Sometimes, a court case is so strong that you don’t need to win on all counts to get the same result. And perhaps the legal precedent you were hoping to set won’t be achieved – because the Justices didn’t need go that far to secure a victory. Such is the dilemma LGBT advocates now face with the federal Defense of Marriage Act (DOMA) – after the U.S. Supreme Court heard oral arguments yesterday. The law clearly violates equal protection, as it denies married same-sex couples all the 1,100 federal marriage benefits their straight counterparts enjoy – and overruling it could set a federal precedent that gays are a “suspect class.” That may still happen, but the Court could repeal DOMA on more technical grounds: (1) House Republicans lack standing to defend the law and (2) DOMA is an attack on states’ rights. Even with a less desirable outcome, that would still be a major victory for marriage equality.

Even if we prevail on repealing Prop 8 in California – or if current legislative efforts succeed at extending marriage to Rhode Island, New Jersey, Delaware, Illinois and Hawaii – same-sex couples would still lack full dignity unless DOMA gets repealed.

Part 3 of DOMA specifically says that, notwithstanding what states may recognize as “marriage,” gay couples are excluded from all federal benefits. That includes joint tax returns, Social Security benefits, sponsoring a spouse for immigration purposes, or spousal benefits for all federal employees – including military personnel. While nine states currently have same-sex marriage, these couples still lack full equality.

The legal strategy to overturn DOMA has been planned for years, unlike the Prop 8 lawsuit (which initially surprised civil rights advocates.) Start with an incremental approach of getting a few states to pass marriage equality – so that we have same-sex couples who are undeniably married according to law. When the federal government denies them benefits, sue under equal protection grounds. Under the best scenario, the U.S. Supreme Court may even find what state supreme courts have found in California, Iowa and Connecticut – sexual orientation is a “suspect class.”

That may still happen, as oral arguments clearly suggested that the 4 liberal Justices and “swing” vote Anthony Kennedy believe that DOMA is unconstitutional. But the danger here is that they may choose to not reach the equal protection question – as the case against DOMA is so strong that the law can be thrown out for other reasons.

Standing Could Throw the Whole Case Out – Repealing DOMA

The case against DOMA is a lawsuit against the federal government, and the Obama Administration agrees with the Plaintiffs that it’s unconstitutional. As a result, they have chosen not to defend it – and the only reason we are at the US Supreme Court is that House Speaker John Boehner spent $3 million in taxpayer money to have lawyers defend DOMA on behalf of House Republicans (technically, the “Bipartisan Legal Advisory Group” but the committee voted 3-2 on party lines to take the case.)

In oral arguments, Chief Justice John Roberts and Antonin Scalia goaded the Obama Administration about why they were still enforcing DOMA – if they believed it was unconstitutional. But the two conservatives failed to distinguish between applying a law because it’s on the books – and refusing to defend it if it’s challenged in Court.

Roberts (a George W. Bush appointee), suggested the President has the power to not enforce laws he believes are unconstitutional – as opposed to asking the Court to interpret the Constitution. While that raises some very disturbing questions about presidential power, the point was obvious: should the Court even hear this case at all? If the Court denies standing, the lower Court’s overruling of DOMA will hold.

But the Court may deny standing for a more obvious reason – House Republicans have no real leg to argue that they would be “harmed” by DOMA’s repeal. Even if they could, what gives them the special status to be recognized as Defendants in this case – unlike Prop 8 proponents, who gathered signatures to put it on the ballot?

Anthony Kennedy and the four liberal Justices asked skeptical questions about BLAG’s standing. Sonia Sotomayor noted that (unlike other cases), there was no statute in DOMA that empowered House Republicans to defend it independent of the Justice Department. Kennedy also asked why the House – but not the Senate – would have standing to step in as Defendants. Even conservative Samuel Alito did not seem convinced that BLAG’s standing would withstand real scrutiny.

Will Kennedy Go Along with Equal Protection – or Stick to Federalism?

When the Court moved to substantive arguments, it was clear that the four liberal Justices believe DOMA violates equal protection. But while Anthony Kennedy asked questions that suggested he agrees, it was not clear if he would join an opinion that overturns it on equal protection grounds – opting instead with a states’ rights tack.

Because Part 3 of DOMA denies federal benefits to all same-sex couples – regardless of what state they live in – it steps on the rights of states that have chosen to legalize same-sex marriage. In fact, one of the DOMA suits was filed by the Commonwealth of Massachusetts. And this “federalism” question dominated the oral arguments.

In one revealing exchange during Solicitor General Richard Vetterli’s presentation, Vetterli eloquently explained how DOMA violates equal protection. Justice Kennedy cut him off, and said: “you insist we get to a very fundamental question about equal protection, but we don’t do that unless we assume the law is valid to begin with.” This suggests to me Kennedy wants to overrule DOMA on federalism grounds.

The Supreme Court will deliberate, and reach a decision on this – and the Prop 8 case – probably in late June, before they adjourn for summer recess.

Tonight, the San Francisco LGBT Community Center will host a re-cap of the Prop 8 and DOMA oral arguments with attorneys from the ACLU and the National Center for Lesbian Rights from 6:00 to 8:00 p.m. – moderated by the Horizons Foundation.

Paul Hogarth has a J.D. from Golden Gate University Law School, and is licensed to practice law in California. He was a legal intern at Equality California in the summer of 2005, was active in Bloggers Against Prop 8, organized volunteers in 2009 who traveled to Maine for the marriage campaign, live-blogged the Prop 8 trial for the Courage Campaign in January 2010 and in 2012 worked as a Campaign Consultant for United for Marriage – a project that sent volunteers to Maine, Maryland, Minnesota & Washington to supplement campaign field efforts. Follow him on Twitter at @paulhogarth.

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