Some interesting items have come out of yesterday's oral arguments before the Supreme Court on the Defense of Marriage Act case. Since I've blogged about this case before, I wanted to take a look at the Court's handling of it.

The first thing I noted is that the Court appointed an amicus curiae to present arguments for the position that the Court did not have jurisdiction to hear the case. This is unusual since neither party to the case had taken this position. However, the case is also unusual in that both parties agree with the lower court decision; neither one is asking the Supreme Court to reverse it. This is what raises the jurisdictional issue: since there is no actual controversy between the parties, why should the Court rule on the case at all?

The reason the case is before the Court is that the Obama administration wants the Court to uphold the lower court decision, which would have the effect of striking down DOMA, which the administration believes is unconstitutional. Of course this raises the question: why is the administration enforcing a law it thinks is unconstitutional? The administration's position is that it is obligated to enforce laws even if it disagrees with them, because Article II of the Constitution says that the President shall "take care that the laws are faithfully executed". But Chief Justice Roberts responded to that:

[T]he Executive's obligation to execute the law includes the obligation to execute the law consistent with the Constitution. And 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 till the Supreme Court tells us we have no choice.

This reminds me of Roberts' opinion on the individual mandate portion of Obamacare, where he basically said that the Court can only rule on whether a law is constitutional, and a law that is constitutional may still be a bad law; it's the job of elected representatives, not the Court, to determine whether a law is good or bad. It will be interesting to see if any of this comes through in the final opinion.

Later on, the point was raised that President Obama, who made a determination that he believed the Act was unconstitutional, is not the President who signed it into law--that was President Clinton, in 1996--which could affect the decision on whether or not to enforce it. If a President determines that a bill is unconstitutional when it reaches his desk for signature, he can simply veto it. But if a President believes that a law signed by a previous President is unconstitutional, he may still choose to enforce it out of deference to the previous President who signed the bill and the previous Congress that passed it. A ruling from the Supreme Court would break this kind of deadlock. (Later on it was pointed out that when DOMA was being considered by Congress, it asked the Clinton Justice Department three times if the proposed Act was constitutional, and all three times the response was that it was.)

Another interesting point arose during the next argument: since the Executive Branch is basically asking the Court to declare a law passed by Congress unconstitutional, shouldn't Congress be a party to the case as well? One key aspect of this is that the Executive Branch is the one litigating the case, making decisions as to how it's argued, whether or not to appeal to the next level of courts, etc., even though the Executive Branch doesn't believe the law is constitutional. As the lawyer making the argument puts it:

It's a conflict of interest. They're the ones that are making litigation decisions to promote the defense of a statute they want to see invalidated. And if you want to see the problems with their position, look at Joint Appendix page 437. You will see 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.

Justice Kennedy remarked in response that this "would give you intellectual whiplash. I'm going to have to think about that."

But in the rebuttal argument of the amicus, a good response to this was given:

[O]nce the litigation is enacted, Congress's authority to supervise it is at an end. It goes over to the Executive Branch. And whether the Executive Branch does it well or badly in the view of Congress, it's in its domain. And separation of powers will not be meaningful if all it means is the Congress has to stay out unless it thinks that the President is doing it badly.

In other words, for better or worse, the Constitution says that the President, not Congress, executes the laws, and that includes litigating them when they are challenged in court.

I was pleased to see that the arguments addressed the issue of government benefits given to married people, since I said previously that this was the key issue, because of the Constitution's guarantee of equal protection of the laws to all citizens. But I was disappointed to see that not much attention was paid to the fact that the 14th Amendment applies the equal protection provision to the States, not just the Federal government, so if it is unconstitutional for the Federal government to restrict the definition of marriage on equal protection grounds, it must be equally unconstitutional for a State to do so. In fact, the first argument on the merits explicitly assumes the contrary:

[T]he legal question on the merits before this Court is actually quite narrow. On the assumption that States have the constitutional option either to define marriage in traditional terms or to recognize same-sex marriages or to adopt a compromise like civil unions, does the Federal Government have the same flexibility or must the Federal Government simply borrow the terms in State law?

Justice Ginsburg did raise a question about what happens if Federal law doesn't recognize a marriage that a State has recognized:

[I]f we are totally for the States' decision that there is a marriage between two people, for the Federal Government then to come in to say no joint return, no marital deduction, no Social Security benefits; your spouse is very sick but you can't get leave; people--if that set of attributes, one might well ask, what kind of marriage is this?

This question eventually led to a good summation of the 1996 Congress's motivation for passing DOMA in the first place:

Congress is worried that people are going to go there [to Hawaii, which was close to adopting same-sex marriage at the time through a state court ruling], 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. 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.

But, as the ensuing discussion made clear, DOMA doesn't actually do this. It privileges the traditional definition of marriage, so States that uphold that definition get to "decide for themselves", but States that adopt same-sex marriage do not; their decision is constrained by the fact that they know the Federal government under DOMA does not recognize same-sex marriage. The lawyer tried to argue that DOMA simply codifies a uniform definition of marriage for the purposes of Federal law, on the theory that when previous Congresses passed laws that used the term "marriage", they meant that term under its traditional definition. But Justice Kagan pointed out:

[F]or the most part and historically, the only uniformity that the Federal Government has pursued is that it's uniformly recognized the marriages that are recognized by the State. So, this was a real difference in the uniformity that the Federal Government was pursuing. And it suggests that maybe something--maybe Congress had something different in mind than uniformity.

Which of course it did; Congress explicitly said that the law was for the purpose of protecting the traditional definition of marriage, and did not recognize same-sex marriage because homosexuality was morally wrong. This fact was referred to several times during the arguments.

The Solicitor General did make an equal protection argument when it was his turn to speak:

The equal protection analysis in this case should focus on two fundamental points: First, what does Section 3 do; and second, to whom does Section 3 do it? What Section 3 does is exclude from an array of Federal benefits lawfully married couples.

But this still applies the equal protection analysis only to the Federal law. Later on, the question of State laws outlawing same-sex marriage was brought up, and the Solicitor General did say that those would have to be looked at on equal protection grounds as well. But then he basically said that's not relevant to this case, which is only about what a Federal law can properly exclude:

They [State laws] have to be analyzed under equal protections principles, but whatever is true about the other situations, in the situation in which the couple is lawfully married for purposes of State law and the exclusion is a result of DOMA itself, the exclusion has to be justified under this Court's equal protection analysis, and DOMA won't do it.

In fact, towards the end of the Solicitor General's brief, Justice Sotomayor asked him point blank:

[Y]our bottom line is, it's an equal protection violation for the Federal Government, and all States as well?

And the Solicitor General responded yes; but then Justice Sotomayor asked:

Is there any argument you can make to limit this to this case, vis-a-vis the Federal Government and not the States?

In other words, we don't want to hear about whether States outlawing same-sex marriage is unconstitutional; that's not part of this case. In fact, the ensuing discussion suggests that, not only is it not part of this case, but that fact in itself gives the equal protection argument less weight in this case, in the Justices' minds. It seems like the Court might shy away from ruling DOMA unconstitutional on equal protection grounds, precisely because that would imply that State laws outlawing same-sex marriage are also unconstitutional on equal protection grounds.

During the next brief on the merits, Chief Justice Roberts posed an interesting question to the lawyer for the woman who originally brought the case in lower courts (she was married in Ontario to a same-sex partner, but was forced to pay estate tax in the US when her spouse died because her marriage was not recognized under DOMA): would there be an issue if Congress passed a law recognizing same-sex couples as being married for purposes of Federal law even if the State they lived in did not permit same-sex marriage? The concern here is not equal protection but federalism: can Congress ever adopt a different definition of marriage than the States?

The Chief Justice commented that everyone kept "returning to the Equal Protection Clause every time I ask a federalism question". But given the discussion that followed, I can see why. The lawyer kept trying to say that there isn't a single blanket answer to the federalism question because it would depend on the circumstances, but the Justices kept pressing her to give a blanket answer anyway. This makes one wonder whether the Court is looking for a way to rule on DOMA's constitutionality without having to do so on equal protection grounds, because of the broad implications that the latter type of ruling would have.

Towards the end, the issue of benefits was brought up once more:

[W]hen 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.

But nobody made the obvious rebuttal that, if DOMA is upheld, a same-sex couple that moves from West Point to Fort Sill in Oklahoma won't get the benefits in the first place; to say that well, then they won't have to worry about losing them, is not much comfort.

But just after this, the most interesting argument is given, right at the end of the transcript. I'll quote it at some length because I suspect it is going to be referred to a lot:

Now the Solicitor General wants to say: Well, it [the passage of DOMA] was want of careful reflection? Well, where do we get careful reflection in our system? Generally, careful reflection comes in the democratic process. The democratic process requires people to persuade people.

The reason there has been a sea change [in public opinion about same-sex marriage] is a combination of political power, as defined by this Court's cases as getting the attention of lawmakers; certainly they have that. But it's also persuasion. That's what the democratic process requires. You have to persuade somebody you're right. You don't label them a bigot. You don't label them as motivated by animus. You persuade them you are right.

That's going on across the country. Colorado, the State that brought you Amendment 2, has just recognized civil unions. Maine, that was pointed to in the record in this case as being evidence of the persistence of discrimination because they voted down a statewide referendum, the next election cycle it came out the other way. And the Federal Congress is not immune. They repealed "Don't Ask, Don't Tell." Allow the democratic process to continue.

What is interesting about this is that the lawyer invokes "the democratic process", which is a pet phrase of Justice Scalia, and he invokes it to make precisely the kind of argument that Scalia likes: the Federal government shouldn't interfere in issues like this. But this lawyer is arguing for upholding DOMA. In other words, he is arguing that the Federal government should not interfere in the democratic process, and his definition of "not interfering" is to uphold a Federal law that imposes a definition of marriage which the "democratic process" in a number of States has rejected.

Of course this kind of sophistry fits right in with the view I have taken in my previous posts on the Supreme Court. Compare, for example, the position I expect Justice Scalia to take in this case, in line with the above argument, with the position he has taken on abortion in a number of cases (most notably in his dissent in Planned Parenthood v. Casey):

• Abortion: the Constitution says nothing about it, and long-standing tradition of our society opposes it, so we should let the States decide; the Supreme Court should get out of this area.

• Same-sex marriage: the Constitution says nothing about it, and long-standing tradition of our society opposes it, so we should not let the States decide; the Supreme Court should uphold a Federal law that imposes a uniform definition of marriage, for purposes of all Federal laws and regulations, with which not all States agree.

As far as the actual question at issue is concerned, I've made my position clear before and I see no reason to change it: to me, the equal protection argument is sufficient to strike down DOMA. It is true, as I noted above, that this argument would also imply that State laws forbidding same-sex marriage are unconstitutional. But note carefully why this would be. It isn't because States can't define what "marriage" is; it's because States, like the Federal government, attach lots of benefits to being "married". If States are going to do that, then defining "marriage" in any way that excludes a class of people violates equal protection. It's that simple.

The right solution to this problem would be for the Federal and State benefits to attach, not to "marriage", but to some legal status that has no social connotations. For example, people could make a legal commitment to form a "household", or designate each other as "significant others", in order to get the benefits. Of course such a legal commitment would have to be something more than just saying so: it would have to involve the same sort of signing of contracts and filing of paperwork and agreeing to legal conditions that marriages and civil unions do now. But it would be a separate thing from the social designation of a given couple as "married", which could then be left up to whatever social circles the couple belonged to.

Unfortunately, such a solution is almost certainly not politically viable in the US today. We just can't help passing laws that help to increase friction between different parts of our society instead of helping to reduce it. We just can't help using political power, when we have it, to try to entrench our particular view of how things should be, instead of making it easier for people with different views to coexist. That's a shame, since allowing people with different views to coexist is what the United States of America is supposed to be about.