Supreme Court Steers Toward Federalism As It Takes on Same-Sex Marriage Again

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United States v. Windsor, U.S., 12-307, argued 3/27/13

Key Issue: Supreme Court, in arguments over same-sex marriage, investigates constitutionality of federal Defense of Marriage Act.

Key Takeaway: Court's desire to talk about federalism issues before getting to the equal protection claims put forth by plaintiff and federal government raise possibility of court avoiding the more complex constitutional issues altogether.


By Tom P. Taylor

Calling on the U.S. Supreme Court to act, Solicitor General Donald B. Verrilli Jr., during oral arguments March 27, told the justices in no uncertain terms that the federal Defense of Marriage Act represents discrimination against gays and lesbians and is inconsistent with the court's—and the country's—understanding of “equal treatment under the law.”

But issues outside the case and complaints about the executive branch's handling of it obscured any view of DOMA's future (United States v. Windsor, U.S., No. 12-307, argued 3/27/13).

The outcome of the case will present challenges to estate and tax practitioners if Section 3 of the Act is ruled unconstitutional, in areas including income, estate, and gift taxes (59 DTR GG-1, 3/27/13).

Speaking on behalf of a group representing the leadership of the U.S. House, Paul Clement of Bancroft PLLC in Washington framed the issue of the statute's definition of marriage as between a man and a woman as an issue of “uniformity,” arguing that the federal government has an interest in treating all same-sex couples equally.

However, federalism issues crept into the argument and seemed to weigh heavily on Justice Anthony M. Kennedy—the court's swing vote and target justice for both sides.

Kennedy said that a statute like DOMA, which has implications for more than 1,100 other federal laws and which affects numerous federal benefits programs—not to mention tax laws—runs a serious risk of conflicting with the traditional state police power over marriage.

But even federalism issues come second to jurisdictional issues of standing, and on that point, several justices seemed more interested in taking the Obama administration to task for refusing to defend DOMA in court than getting to the bottom of the federal government's right to bring the case to the Supreme Court.

Chief Justice John G. Roberts Jr. even seemed to taunt the executive branch for lacking the “courage of its convictions,” because it decided not to defend the law while still enforcing it, leaving the ultimate decision up to the court.

All these diversions from the issues briefed by the parties—together with the court's willingness to consider dismissal and other options short of ruling on same-sex marriage as a constitutional equal protection issue during March 26 argument over California's Proposition 8 (59 DTR K-2, 3/27/13)—seem to show that the court is stepping away from the tough decisions these cases could present and moving in this unfamiliar territory toward an eventual opinion that deals with same-sex marriage on much more narrow grounds.

Hawaiian Ruling Spawns DOMA
Congress enacted DOMA in 1996 following a decision by the Supreme Court of Hawaii indicating that the state constitution prohibited denying marriage licenses to same-sex couples.

Fears that same-sex marriage would spread throughout the country in the wake of such a decision prompted Congress to take the step of enshrining the one-man/one-woman definition into federal law via Section 3 of the act. From that point on, any statute mentioning marriage would also carry that definition.

This included the tax code, which—after Edith Windsor's wife, Thea Spyre, passed away—required Windsor to pay $363,053 in estate taxes. The two women were married in Toronto in 2007, a union that the lower courts concluded would have been recognized by their home state of New York.

Windsor paid the tax bill and filed a request for a refund. IRS denied the request and Windsor sued in federal district court.

While the suit was pending, the U.S. attorney general announced that the Department of Justice would no longer defend DOMA in federal court, concluding that the law was unconstitutional. However, the federal government would continue to enforce the law.

In light of this development, the Bipartisan Legal Advisory Group (BLAG) of the U.S. House intervened in the case to defend DOMA.

Windsor emerged victorious from both the district court and the U.S. Court of Appeals for the Second Circuit, which held that the Justice Department's changed position did not deprive it of standing and, applying heightened scrutiny, that DOMA violated equal protection.

Court Subs Federalism for Equal Protection
But at the Supreme Court, equal protection seemed to be the furthest thing from the justices' minds.

Instead, some members of the court eschewed the tricky issue of whether gays and lesbians constitute a protected class for purposes of equal protection analysis in favor of looking at whether Congress overstepped its bounds by meddling with marriage—even just the definition—in the first place.

As Verrilli tried to begin his argument with a discussion of “what does Section 3 do; and second, to whom does Section 3 do it?” Roberts stopped him and asked whether Congress could “go the other way,” defining marriage to include “committed same-sex couples.”

When Verrilli answered yes, Roberts clarified: “So just to be clear, you don't think there is a federalism problem with what Congress has done in DOMA?”

“No, we don't, Mr. Chief Justice,” Verrilli replied.

This surprised Kennedy, who asked if Verrilli thought that Congress could “supersede the traditional authority and prerogative of the states to regulate marriage in all respects.” That is, could Congress define marriage to include only marriages where the parties are over 18, or include other considerations, such as consanguinity?

As Verrilli tried to bring the conversation back to equal protection, Justice Elena Kagan plunged into the fray.

“[S]urely the question of what the federal interests are and whether those federal interests should take account of the historic state prerogatives in this are is relevant to the equal protection inquiry,” she said.

In all, the exchange gave the impression that the court thought it might be able to avoid equal protection—and all its difficult questions about protected classes and levels of scrutiny—if it could conclude that Congress had overstepped its bounds with DOMA.

Kennedy summed the point up when he told Verrilli, “You are insisting that we get to a very fundamental question about equal protection, but we don't do that unless we assume the law is valid otherwise to begin with.”

Is House Report Enough?
That is not to say that the court spent no time talking about Congress's reasons for passing DOMA, or if they may or may not have been legitimate.

Clement stressed that Congress saw a need for uniformity, so that same-sex couples are not subjected to a roller coaster of benefit eligibility and ineligibility depending on nothing more then where they happen to be located. As he told the justices:

And we heard today that there's a problem; when somebody moves from New York to North Carolina, they can lose their benefits. 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. We don't want somebody, if they are going to be transferred in the military from West Point to Fort Sill in Oklahoma, to resist the transfer because they are going to lose some benefits.

Kagan however, was not convinced that this told the whole story.

“Mr. Clement, for the most part and historically, the only uniformity that the federal government has pursued is that it has uniformly recognized the marriages that are recognized by the state,” she said. Thus, DOMA's redefinition of marriage hints that “maybe Congress had something different in mind than uniformity,” she added.

Specifically, Kagan—in a rather dramatic moment—quoted directly from the House Report: “Congress decided to reflect an honor of collective moral judgment and the express moral disapproval of homosexuality.”

“Is that what happened in 1996?” she asked Clement.

Clement, not at all taken aback by the language invoked by Kagan, responded that “if that's enough to invalidate the statute, then you should invalidate the statute.” But, he said, that has never been the court's approach—striking down a statute “just because a couple of legislators may have had an improper motive.”

Instead, the court should consider whether other proper motives—like uniformity—are inherent in the legislation, Clement said. And they are, he concluded.

Jurisdictional Soap Box
The court also had to tackle issues of jurisdiction for both the federal government and BLAG.

The court appointed an amicus curiae, Vicki C. Jackson, a professor at Harvard Law School in Cambridge, Mass., to argue that the BLAG lacked standing to bring the case and that the federal government forfeited jurisdiction by failing to defend the statute.

Most of Jackson's argument time was spent discussing the federal government, and justices on both sides of the ideological divide seemed ready to challenge her assertion that the executive branch's decision not to defend the statute deprived the court of jurisdiction.

Justice Sonia M. Sotomayor wondered how a suit like this could possibly move forward if the federal government takes a position like this in the future.

Justice Antonin Scalia seemed to imply that if the jurisdiction of the district court remained intact, which Jackson said that it did, then that jurisdiction would follow the case through the appellate process.

While Kennedy added that “it seems to me there's injury here,” Kagan may have produced the most memorable assessment of the situation.

[W]e have injury here in the most classic, most concrete sense. There's $300,000 that's going to come out of the government's treasury if this decision is upheld, and it won't if it isn't.

Now, the government is willing to pay that $300,000, would be happy to pay that $300,000, but whether the government is happy or sad to pay that $300,000, the government is still paying the $300,000, which in the usual set of circumstances is the classic Article III injury.

But once Deputy Solicitor General Sri Srinivasan took to the podium, the tenor shifted, with several justices expressing disapproval of the government's decision not to defend the law.
AG Responsibilities
Citing his own time at the Justice Department's Office of Legal Counsel, Scalia pointed to an opinion stating that the attorney general must defend the laws of the United States, except in two cases: “Number one, where the basis for the alleged unconstitutionality has to do with presidential powers”; and “where no possible rational argument could be made in defense of it,” neither of which applied here, he said.

Scalia and Roberts then set about trying to tease out the circumstances that would compel the government to defend a law or not defend it.

“What is the test for when you think your obligation to take care that the laws be faithfully executed means you'll follow your view about whether [a law is] constitutional or not, or you won't follow your view?” Roberts asked.

Scalia wondered if only the president could make such a call, or whether the attorney general or solicitor general had the power.

All this prodding led Sotomayor to implore Srinivasan, “Counsel, could you not run out of time on the BLAG standing?”

But it was Clement who made a strong argument for BLAG's standing, arguing that Congress's core lawmaking powers were under fire and that the legislature, the House in particular, had the ability to defend them.

He also implied it was absurd to try to rest standing on the federal government's involvement in the case by pointing to the “most anomalous motion to dismiss in the history of litigation: A motion to dismiss, filed by the United States, asking the district court not to dismiss the case.”

Kennedy then replied, “That would give you intellectual whiplash. I'm going to have to think about that.”

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