[JURIST] The US Supreme Court [official website] heard oral arguments Wednesday in United States v. Windsor [transcript, PDF; audio], the second of two cases the court heard this week on same-sex marriage [JURIST report; JURIST backgrounder]. In Wednesday’s argument, the court considered the validity of Section 3 of the Defense of Marriage Act (DOMA) [text; JURIST news archive], a federal law that recognizes only opposite-sex marriages for federal benefits purposes, despite state law on the issue. The case concerns Edith Windsor [ACLU backgrounder], a widow who had a legal same-sex marriage under Canadian and New York law but was denied spousal deduction for Federal estate taxes when her wife died. Prior to her challenge, the US Department of Justice (DOJ) announced that it would no longer defend DOMA in courts, and in response, the US House of Representatives formed [JURIST reports] the Bipartisan Legal Advisory Group (BLAG) to defend the law.

Paul Clement, the attorney for BLAG, began his arguments on the merits of the case by suggesting the federal government can and should be afforded the same flexibility in defining marriage as the individual states: “the basic principles of federalism suggest that as long as the Federal government defines those terms solely for purposes of Federal law, that the Federal government has the choice to adopt a constitutionally permissible definition or to borrow the terms of the statute.” Justices Ruth Bader Ginsburg and Sonia Sotomayor questioned him on the many things DOMA restricts for couples that are lawfully married in their home states, as well as whether the federal government respects other forms of marriage, such as common law, when some states do not. Clement insisted that DOMA is expressing a right of definition by the federal government:

[I]t really matters that all DOMA does is take this term where it appears in Federal law and define it for purposes of Federal law. It would obviously be a radically different case if Congress had, in 1996, decided to try to stop States from defining marriage in a particular way or dictate how they would decide it in that way.

Justice Anthony Kennedy brought up that there are approximately 1,100 federal laws that affect marriages and the federal government seeks only to define this aspect. Clement responded that when states began experimenting with same-sex marriage laws, the federal government decided that since those 1,100 laws were passed with the traditional definition in mind, the federal government should uphold that definition through DOMA. He also suggested there was an equity consideration involved, because DOMA treats committed same-sex couples the same regardless of where they live, while Sotomayor pointed out that it treats married couples differently. Despite Clement’s arguments, Ginsburg referred to the reach of DOMA as “pervasive”: “They’re not a question of additional benefits. I mean, they touch every aspect of life. … You’re saying, no, State said two kinds of marriage; the full marriage, and then this sort of skim milk marriage.”

Solicitor General Donald Verrilli then argued in support of the respondent, Windsor, suggesting that DOMA creates an Equal Protection Clause violation, but does not violate principles of Federalism [Cornell LII backgrounders]. Verrilli also rejected Clement’s argument that DOMA is solely about uniformity:

Now, this statute is not called the Federal Uniform Marriage Benefits Act; it’s called the Defense of Marriage Act. And the reason for that is because the statute is not directed at uniformity in the administration of Federal benefits. … So the issue of uniformity just doesn’t get you there, because there is no uniformity advantage to Section 3 of DOMA as opposed to the traditional rule. … And the fundamental reality of it is, and I think the House report makes this glaringly clear, is that DOMA was not enacted for any purpose of uniformity, administration, caution, pausing, any of that. It was enacted to exclude same-sex married, lawfully married couples from Federal benefit regimes based on a conclusion that was driven by moral disapproval.

Verrilli also argued that when the aforementioned 1,100 laws on marriage were enacted, they were not with the “traditional” definition of marriage in mind, but to apply to whatever state definition of marriage, even if it varied on age, consanguinity, or sexual orientation.

Attorney Roberta Kaplan then argued directly for Windsor. Kaplan did not indicate whether the law automatically violated principles of Federalism, but pointed to its peculiarity as a federal law: “Federal litigation for hundreds of years with respect to the residency of where people live or don’t live, or whether they are divorced or not divorced throughout the Federal system. And the Federal government has always handled that and has never before—and we believe this is why it’s unconstitutional—separated out a class of married gay couples solely because they were gay.” Kaplan also suggested that, in 1996, the law was passed due to the majority of Congress not understanding that there were no fundamental differences between straight and gay couples. Justice Antonin Scalia and Chief Justice John Roberts questioned Kaplan on whether LGB citizens are a politically vulnerable minority, to which she responded that only LGB citizens, as a distinct group, have had their rights put up for referendum. She also argued that acceptance of homosexuality and bisexuality comes less from “political power” and more from societal understanding of sexual orientation.

All of the attorneys except Kaplan were also asked to brief the court on Article III [text] standing issues involved in the case, at the beginning of arguments. Vicki Jackson, a court-appointed amicus curiae first briefed the issue, arguing against standing because “Petitioner, the United States, does not ask this Court to redress the injuries it asserts. [BLAG], which does seek redress in the form of reversal, asserts no judicially cognizable injury. While it is natural to want to reach the merits of such a significant issue, as in Raines v. Byrd, this natural urge must be put aside because, however important the constitutional question, Article III prevents its decision here and requires this court to await another case, another day, to decide the question.” Deputy Solicitor General Sri Srinivasan offered the Federal government’s position that although the SG and the president have declined to enforce or defend the law, the government still had a judgment against it and thus an injury, which permitted the appeals that laid to the Supreme Court. He also presented the position that the government is aggrieved an injury totally because the law is unconstitutional and they are forced to deal with whether or not to enforce an unconstitutional law. Srinivasan then argued that BLAG could only have statutory standing as a party, akin to an amicus party, as they have not been granted intervenor status. Clement suggested that INS v. Chadha [opinion] empowered the House of Representatives to defend an act of Congress.