DOMA: A Question of Federalism or Equal Protection?
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.