High Court Signals Defense of Marriage Act Likely to fall

New York Times

New York Times

Justice Kennedy expresses skepticism over the Federal Government “defining” marriage

Justice Anthony Kennedy, whom court watchers call the key vote, was openly hostile to attorney Peter Clement, the attorney defending the federal Defense of Marriage Act (DOMA) before the High Court yesterday. While Kennedy signaled in the California Proposition 8 case that he is not willing to declare there is a “constitutional right” to same sex marriage, was very disparaging of the federal government’s refusal, vis-à-vis DOMA, to honor and recognize same sex marriages legalized by the democratic process in states either through the legislative process or by ballot initiative.

The case, officially known as “Windsor v. the United States of America,” centers on Windsor having to pay a $363,000 estate tax bill when her wife died. The state of New York legally recognized Ms. Windsor’s marriage from Canada – the Internal Revenue Service did not. Thus, Windsor was forced to pay the whopping estate tax bill when her wife, Thea Spyer, died. However, the case is just more than about estate taxes. According to the Los Angeles Times, over 130,000 legally married gay Americans are denied federal benefits because of DOMA – from healthcare benefits, military spousal benefits to Social Security.

During the hearing, the court quickly divided in the 4 to 4 “liberal vs. conservative” split with Kennedy’s questions openly siding with the 4 liberal justices. Kennedy chided Peter Clement stating his concerns about the broad powers of “federalism” declaring there was a “real risk” of DOMA running into a head long conflict with a state’s power to regulate marriage. “The question,” Kennedy articulated, “is whether or not the Federal government, under our federalism scheme, has the authority to regulate marriage?”

Chief Justice Roberts asserted that gay people are not a powerless minority because “political figures are falling over themselves” to side with them. Roberts noted during the oral arguments that history and public opinion are on the side of the challengers.

Roberts went further to criticize the Justice Department position of not defending the case and call it “unprecedented” – forcing the court to make a decision. Roberts’ argument centered more with the “standing” of Mr. Clement having the right to defend the law on behalf of the U.S. House of Representatives while the Obama Administration was encouraging the court to strike the law down.

While “states’ rights vs. federal authority” was a key component to the discussion, observers believe the court will find a way to get to the “merits” of the case – whether or not the DOMA is constitutional. It is believed that because the federal government will be the one to have to issue the refund check to Ms. Windsor – and this will be the vehicle they will use resolve the standing issue – the federal government does have a compelling interest in the merits of the case as “check writer.”

While it is an extremely dangerous game to predict a decision of the Supreme Court based upon their questions, the key to the outcome is the justices’ analysis whether to regard laws that single out gays and lesbians with what’s called “heightened scrutiny” is constitutional. The type of review is now used to strike down measures that single out politically disfavored and less powerful groups in society.

Yesterday it was apparent that the justices were extremely skeptical of the constitutionality of the Defense of Marriage Act. We expect the ruling on Thursday, June 27th – the last day of the current court session when the court traditionally makes announcements of controversial decisions.