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| Gay marriage: Doma faces uncertain future as court questions law's validity | Gay marriage: Doma faces uncertain future as court questions law's validity |
| (about 1 month later) | |
| US supreme court justices strongly challenged a federal law banning recognition of same-sex marriages as discriminatory, motivated by prejudice and diminishing the power of individual states to regulate marriage. | US supreme court justices strongly challenged a federal law banning recognition of same-sex marriages as discriminatory, motivated by prejudice and diminishing the power of individual states to regulate marriage. |
| On the second day of historic hearings about gay unions, the 1996 Defence of Marriage Act (Doma) was left facing an uncertain future. The court's usual swing vote on social issues, Justice Anthony Kennedy, aligned with the four liberal judges to strongly question the legitimacy of the law and the authority of the federal government to impose a definition of marriage as only between a man and a woman on those US states which permit same-sex unions. The law prevents same-sex spouses from receiving federal benefits, tax breaks and some legal protections. | On the second day of historic hearings about gay unions, the 1996 Defence of Marriage Act (Doma) was left facing an uncertain future. The court's usual swing vote on social issues, Justice Anthony Kennedy, aligned with the four liberal judges to strongly question the legitimacy of the law and the authority of the federal government to impose a definition of marriage as only between a man and a woman on those US states which permit same-sex unions. The law prevents same-sex spouses from receiving federal benefits, tax breaks and some legal protections. |
| Kennedy bolstered the expectations of Doma's opponents by emphasising his concerns that the law intrudes on the rights of individual states to recognise gay marriages. | Kennedy bolstered the expectations of Doma's opponents by emphasising his concerns that the law intrudes on the rights of individual states to recognise gay marriages. |
| "When it has 1,100 laws, which in our society means that the federal government is intertwined with [its] citizens' day-to-day lives, you are at real risk of running in conflict with what has always been thought to be the essence of the state police power, which is to regulate marriage, divorce and custody," he said. | "When it has 1,100 laws, which in our society means that the federal government is intertwined with [its] citizens' day-to-day lives, you are at real risk of running in conflict with what has always been thought to be the essence of the state police power, which is to regulate marriage, divorce and custody," he said. |
| The challenge to Doma was brought by Edith Windsor, who was married to Thea Spyer in Canada in 2007. The couple lived in New York, where their marriage was recognised by the state government. But when Spyer died in 2009, the federal government invoked Doma to force Windsor, who is now 83 and in poor health, to pay $363,000 in taxes on her late wife's estate – a charge she would have been exempt from had she been married to a man. | The challenge to Doma was brought by Edith Windsor, who was married to Thea Spyer in Canada in 2007. The couple lived in New York, where their marriage was recognised by the state government. But when Spyer died in 2009, the federal government invoked Doma to force Windsor, who is now 83 and in poor health, to pay $363,000 in taxes on her late wife's estate – a charge she would have been exempt from had she been married to a man. |
| The liberal justices at times found themselves in the unusual position of backing Kennedy's emphasis on states' rights – a position usually defended by the court's conservatives – as they painted Doma as unreasonably discriminating against legally married same-sex couples. Nine states and Washington DC recognise gay weddings. | The liberal justices at times found themselves in the unusual position of backing Kennedy's emphasis on states' rights – a position usually defended by the court's conservatives – as they painted Doma as unreasonably discriminating against legally married same-sex couples. Nine states and Washington DC recognise gay weddings. |
| "It really diminishes what states have said about marriage," said Justice Ruth Bader Ginsburg. | "It really diminishes what states have said about marriage," said Justice Ruth Bader Ginsburg. |
| She dismissed descriptions of Doma as merely having an administrative impact, saying it "affects every area of life" for gay couples, and creates "two kinds of marriage". | She dismissed descriptions of Doma as merely having an administrative impact, saying it "affects every area of life" for gay couples, and creates "two kinds of marriage". |
| "The full marriage, and then this sort of skim-milk marriage," she said. | "The full marriage, and then this sort of skim-milk marriage," she said. |
| Justice Elena Kagan questioned the motivation for the law, saying Congress passed it in a climate of "animus" and "dislike" of homosexuals, and of "moral judgement". | Justice Elena Kagan questioned the motivation for the law, saying Congress passed it in a climate of "animus" and "dislike" of homosexuals, and of "moral judgement". |
| Justice Stephen Breyer asked why it is necessary to single out gay people as subject to a law barring them from equal treatment. He called the discrimination "irrational" in law. | Justice Stephen Breyer asked why it is necessary to single out gay people as subject to a law barring them from equal treatment. He called the discrimination "irrational" in law. |
| Kennedy's statements had opponents of Doma predicting he will ally himself with the liberal justices to strike down the law. But even if it is ruled unconstitutional, that will not establish a right to gay marriage – merely an obligation on the federal government to recognise it in those states where it is legal. | Kennedy's statements had opponents of Doma predicting he will ally himself with the liberal justices to strike down the law. But even if it is ruled unconstitutional, that will not establish a right to gay marriage – merely an obligation on the federal government to recognise it in those states where it is legal. |
| The Obama administration has already repudiated the legislation and supports federal court rulings against it. | The Obama administration has already repudiated the legislation and supports federal court rulings against it. |
| The US solicitor general, Donald Verrilli, told the supreme court that refusing to recognise gay marriages is not like other forms of discrimination because of the impact on people's lives, and said it breaches equal protection clauses in the constitution. | The US solicitor general, Donald Verrilli, told the supreme court that refusing to recognise gay marriages is not like other forms of discrimination because of the impact on people's lives, and said it breaches equal protection clauses in the constitution. |
| Verrilli said gay people were a "persecuted minority" and asked why the spouse of a gay soldier killed in the line of duty should not receive the same benefits as those given to heterosexual couples. | Verrilli said gay people were a "persecuted minority" and asked why the spouse of a gay soldier killed in the line of duty should not receive the same benefits as those given to heterosexual couples. |
| "The question before the court is whether the exclusion that Doma imposes violates equal protection, and it does violate equal protection because you can't treat this as though it were just a distinction between optometrists and ophthalmologists, as the Lee Optical case did. This is a different kind of a situation because the discrimination here is being visited on a group that has historically been subject to terrible discrimination," he said. | "The question before the court is whether the exclusion that Doma imposes violates equal protection, and it does violate equal protection because you can't treat this as though it were just a distinction between optometrists and ophthalmologists, as the Lee Optical case did. This is a different kind of a situation because the discrimination here is being visited on a group that has historically been subject to terrible discrimination," he said. |
| However, Verrilli faced questions over whether obliging the federal government to recognise same-sex marriages where they are legal would not create another kind of discrimination against gay couples in states where they are not. | However, Verrilli faced questions over whether obliging the federal government to recognise same-sex marriages where they are legal would not create another kind of discrimination against gay couples in states where they are not. |
| Paul Clement, the former US solicitor general who argued and lost the case against Barack Obama's healthcare reforms, defended Doma as merely creating uniformity in how same sex couples are treated across the country for administrative purposes. He said the law does not intrude on states' rights because it does not regulate marriage but creates a framework for the implementation of policies on benefits and taxation. | Paul Clement, the former US solicitor general who argued and lost the case against Barack Obama's healthcare reforms, defended Doma as merely creating uniformity in how same sex couples are treated across the country for administrative purposes. He said the law does not intrude on states' rights because it does not regulate marriage but creates a framework for the implementation of policies on benefits and taxation. |
| "The federal government is saying that within its own realm in federal policies, where we assume that the federal government has the authority to define the terms that appear in their own statute, that in those areas, they are going to have their own definition," said Clement. | "The federal government is saying that within its own realm in federal policies, where we assume that the federal government has the authority to define the terms that appear in their own statute, that in those areas, they are going to have their own definition," said Clement. |
| Kagan questioned the idea that the law is merely administrative by quoting from the House of Representatives' own report on the debate during the passing of Doma in 1996, which states that "Congress decided to reflect an honour of collective moral judgment and to express moral disapproval of homosexuality". | Kagan questioned the idea that the law is merely administrative by quoting from the House of Representatives' own report on the debate during the passing of Doma in 1996, which states that "Congress decided to reflect an honour of collective moral judgment and to express moral disapproval of homosexuality". |
| Clement said that was not enough to make the legislation unconstitutional. "Does the House Report say that? Of course the House Report says that. And if that's enough to invalidate the statute, then you should invalidate the statute. But that has never been your approach, especially under rational basis or even rational basis-plus, if that is what you are suggesting," he said. | Clement said that was not enough to make the legislation unconstitutional. "Does the House Report say that? Of course the House Report says that. And if that's enough to invalidate the statute, then you should invalidate the statute. But that has never been your approach, especially under rational basis or even rational basis-plus, if that is what you are suggesting," he said. |
| But Kagan said that the motivation behind the legislation should cause the court to give it special scrutiny. | But Kagan said that the motivation behind the legislation should cause the court to give it special scrutiny. |
| "So we have a whole series of cases which suggest the following: which suggest that when Congress targets a group that is not everybody's favourite group in the world, that we look at those cases with some rigour to say: do we really think that Congress was doing this for uniformity reasons, or do we think that Congress's judgment was infected by dislike, by fear, by animus, and so forth?" | "So we have a whole series of cases which suggest the following: which suggest that when Congress targets a group that is not everybody's favourite group in the world, that we look at those cases with some rigour to say: do we really think that Congress was doing this for uniformity reasons, or do we think that Congress's judgment was infected by dislike, by fear, by animus, and so forth?" |
| She said: "I guess the question that this statute raises, this statute that does something that's really never been done before, is whether that sends up a pretty good red flag that that's what was going on." | She said: "I guess the question that this statute raises, this statute that does something that's really never been done before, is whether that sends up a pretty good red flag that that's what was going on." |
| The case, coming a day after the supreme court considered the constitutional legitimacy of a California referendum that overturned same-sex marriage in the state, pitted the White House against Republican leaders in Congress angered that the Obama administration will no longer defend Doma. | The case, coming a day after the supreme court considered the constitutional legitimacy of a California referendum that overturned same-sex marriage in the state, pitted the White House against Republican leaders in Congress angered that the Obama administration will no longer defend Doma. |
| Before the justices heard arguments over the law's constitutionality, they considered opinions over whether Congress had the right to defend Doma. The court appointed its own lawyer, Vicki Jackson, to present the case for why Congress does not have "standing" to take legal action. | Before the justices heard arguments over the law's constitutionality, they considered opinions over whether Congress had the right to defend Doma. The court appointed its own lawyer, Vicki Jackson, to present the case for why Congress does not have "standing" to take legal action. |
| Jackson told the justices that once Congress passes laws, responsibility for enforcing them shifts to the executive, and the legislature ceases to have active involvement. Jackson also said the supreme court should not consider the case because it was resolved by the Obama administration's decision not to challenge federal court rulings overturning Doma. | Jackson told the justices that once Congress passes laws, responsibility for enforcing them shifts to the executive, and the legislature ceases to have active involvement. Jackson also said the supreme court should not consider the case because it was resolved by the Obama administration's decision not to challenge federal court rulings overturning Doma. |
| But Justice Antonin Scalia waded in to suggest that the supreme court has a role to play, because the federal government has taken the unusual step of no longer defending a law still on the statute books even while enforcing it. | But Justice Antonin Scalia waded in to suggest that the supreme court has a role to play, because the federal government has taken the unusual step of no longer defending a law still on the statute books even while enforcing it. |
| "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," said Scalia. | "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," said Scalia. |
| Justice Sonia Sotomayor questioned Clement over whether a committee founded by the Republican leadership in the House of Representatives specifically to defend Doma — the Bipartisan Legal Advisory Group, known as Blag — has the legal authority to act in the name of Congress. "Can you tell me where the authorisation is here?" she asked. | Justice Sonia Sotomayor questioned Clement over whether a committee founded by the Republican leadership in the House of Representatives specifically to defend Doma — the Bipartisan Legal Advisory Group, known as Blag — has the legal authority to act in the name of Congress. "Can you tell me where the authorisation is here?" she asked. |
| Clement said Blag had been authorised by a vote of the entire House. | Clement said Blag had been authorised by a vote of the entire House. |
| Edith Windsor's lawyer, Roberta Kaplan, questioned whether a majority could strip a minority of their rights — referring specifically to the case the court heard on Tuesday over the Proposition 8 referendum in California, which reversed a gay marriage law. | Edith Windsor's lawyer, Roberta Kaplan, questioned whether a majority could strip a minority of their rights — referring specifically to the case the court heard on Tuesday over the Proposition 8 referendum in California, which reversed a gay marriage law. |
| Roberts pressed her on whether change came about because of political lobbying or popular attitudes. | Roberts pressed her on whether change came about because of political lobbying or popular attitudes. |
| "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," she said. | "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," she said. |
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