DOMA: A Question of Federalism or Equal Protection?

In an omen to both sides of the same-sex marriage debate that they risk walking away with less than they want, arguments before the Supreme Court went from yesterday’s debate on whether a state’s voters can usurp what the federal government may deem a constitutional right to today’s issue of whether the federal government can have a Defense of Marriage Act if the business of marriage should be the prerogative of the states.


“The question is whether or not the federal government under our federalism scheme has the authority to regulate marriage,” said Justice Anthony Kennedy, a potential swing vote in today’s case and in the arguments against California’s Proposition 8 heard yesterday.

“What gives the federal government the right to be concerned at all about what the definition of marriage is?” Justice Sonia Sotomayor asked.

Nine states currently recognize gay marriage and 30 states have banned it via constitutional amendments.

United States v. Windsor is an appeal on a case brought by Edie Windsor, who married her partner in Canada in 2007. When her partner died in 2009, their home state of New York recognized same-sex marriages performed elsewhere. When Windsor inherited her spouse’s estate, she was forced to pay $363,000 in taxes on the inheritance because her marriage was not recognized on a federal level.

Because of the core tax issue, many felt the conservatives on the court would be more sympathetic to the case despite the highly charged facet of gay marriage.

“Suppose we look just at the estate tax provision that’s an issue in this case, which provides specially favorable treatment to a married couple, as opposed to any other individual or economic unit. What was the purpose of that? Was the purpose of that really to foster traditional marriage?” asked Justice Samuel Alito. “Or was Congress just looking for a convenient category to capture households that function as a unified economic unit?”


Attorney Paul Clement, a former solicitor general who led the challenge to ObamaCare last year, argued that Congress passed DOMA in 1996 faced with “the prospect that one state, through its judiciary, will adopt same-sex marriage and then, by operation of the full faith and credit law, that will apply to any — any couple that wants to go there.”

“And so Congress is worried that people are going to go there, go back to their home jurisdictions, insist on the recognition in their home jurisdictions of their same-sex marriage in Hawaii, and then the federal government will borrow that definition, and, therefore, by the operation of one state’s state judiciary, same-sex marriage is basically going to be recognized throughout the country,” Clement said.

“And what Congress says is, wait a minute. Let’s take a timeout here. This is a redefinition of an age-old institution. Let’s take a more cautious approach, where every sovereign gets to do this for themselves.”

“You’re saying, we can create this special category — men and women — because the states have an interest in traditional marriage that they’re trying to protect,” Sotomayor interjected. “How do you get the federal government to have the right to create categories of that type based on an interest that’s not there, but based on an interest that belongs to the states?”


“One way to stay out of the debate and let just the states develop this and let the democratic process deal with this is to just say, look, we’re going to stick with what we’ve always had, which is traditional definition,” Clement argued. “We’re not going to create a regime that gives people an incentive and point to federal law and say, well, another reason you should have same-sex marriage is because then you’ll get a state tax deduction.”

“It’s not as though, well, there’s this little federal sphere and it’s only a tax question,” said Justice Ruth Bader Ginsburg. “It’s as Justice Kennedy said, 1,100 statutes, and it affects every area of life. And so you’re really diminishing what the state has said is marriage.”

Justice Elena Kagan noted that a House report said Congress “decided to reflect and honor a collective moral judgment and to express moral disapproval of homosexuality” in its passage of DOMA.

“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,” Clement responded. “…The House report says some things that we are not — we’ve never invoked in trying to defend the statute. But the House report says other things, like Congress was trying to promote democratic self-governance.”


Solicitor General Donald Verrilli Jr., under questioning from Chief Justice John Roberts, said he didn’t think there would be a problem with federalism if Congress today passed a law recognizing same-sex marriage, because “that wouldn’t raise an equal protection problem like this statute does.”

“So just to be clear, you don’t think there’s a federalism problem with what Congress has done in DOMA?” Roberts asked.

“No, we don’t, Mr. Chief Justice. The question is, what is the constitutionality for equal protection purposes? And because it’s unconstitutional and it’s embedded into numerous federal statutes, those statutes will have an unconstitutional effect,” Verrilli replied.

“But you’re insisting that we get to a very fundamental question of equal protection, but we don’t do that unless we assume that the law is valid otherwise to begin with. And we’re asking, is it valid otherwise? What is the federal interest in enacting this statute? And is it a valid federal interest assuming — before we get to the equal protection analysis?” Kennedy said.

“We think whatever the outer bounds of the federal government’s authority — and there certainly are outer bounds — would be, apart from the equal protection violation, we don’t think that section three, apart from equal protection analysis, raises a federalism problem,” Verrilli said. “But we do think the federalism analysis does play into the equal protection analysis, because the federal government is not the 51st state.”


Roberts questioned President Obama for continuing to enforce DOMA’s provisions even while proclaiming that it’s unconstitutional.

“If he has made a determination that executing the law by enforcing the terms is unconstitutional, I don’t see why he doesn’t have the courage of his convictions and execute not only the statute, but do it consistent with his view of the Constitution, rather than saying, ‘Oh, we’ll wait ’til the Supreme Court tells us we have no choice,'” the chief justice said.

White House spokesman Josh Earnest said in response at the daily press briefing that the administration will enforce “laws that we disagree with,” though Obama had decided not to defend DOMA in court.

“You know, in terms of what our legal posture is for these things, I would refer you to the Department of Justice. They have done the legal analysis required to reach the conclusion that it is unconstitutional. They also are the ones that are responsible for enforcing these laws,” Earnest added.

Because of the tie to Congress, some lawmakers had their interest piqued beyond the state ballot case heard a day earlier.

House Minority Leader Nancy Pelosi (D-Calif.) attended the day’s arguments. “When I first became whip and after that, one of the first questions, shall we say, less than friendly journalists would ask me on their show or so would be, do you support gay marriage? And of course I would always say, I support gay marriage,” she told reporters afterward. “So, now it’s a badge of honor for a lot of people but, for a long time, it was something that we knew was inevitable.”


“You know, from our beautiful place in San Francisco, the city of St. Francis, we knew it was inevitable that all of this would happen. It was inconceivable to others that it would,” Pelosi continued. “And it was our job to use whatever influence we could have to shorten the distance between the inevitable and the inconceivable.”

D.C. Del. Eleanor Holmes Norton said the District’s marriage rate doubled the first year after same-sex marriage passed here in 2009.

“The District, along with nine states, has been a pioneering jurisdiction in expanding civil rights to gay residents,” said Norton. “…If DOMA is struck down, D.C. residents and others who were married here will be among the first to benefit and may benefit disproportionately in part because of the large number of residents who are federal employees, whose spouses would benefit from federal employee benefits, including health care.”

Hill Republicans pretty much ignored the day’s proceedings, though, with House Speaker John Boehner’s (R-Ohio) office pressuring Obama yet again to approve the Keystone XL pipeline and counting down to the president’s two-months-late budget due on April 8.

Join the conversation as a VIP Member