Highlights From DOMA's Day At The Supreme Court

The Supreme Court heard arguments Wednesday on the Defense of Marriage Act, a federal law that defines marriage as the legal union between a man and a woman. David Savage, who covers the Supreme Court for the Los Angeles Times and Chicago Tribune, provides analysis of excerpts from the arguments.

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NEAL CONAN, HOST:

This is TALK OF THE NATION. I'm Neal Conan in Washington. And now, day two of the same-sex marriage debate in the Supreme Court. After yesterday's arguments on California's Proposition 8, today the Federal Defense of Marriage Act, DOMA as it's known. It was approved by a wide margin in Congress in 1996, but since then, many minds have changed.

The Obama administration rejects the law's definition of marriage and especially the requirement to deny any of the benefits of marriage to same-sex couples. The case is the United States v. Windsor. In 2007, Edith Windsor and Thea Spyer married in Canada after 40 years as a couple. Following Spyer's death two years later, Windsor had to pay more than $350,000 in federal estate taxes, money she would not have owed if her spouse was of the opposite sex.

Lower courts ruled in Windsor's favor under the Equal Protection Clause of the Constitution. We're going to be listening to substantial excerpts from today's arguments in just a moment. Later in the program, the real reason Putin backs Assad. But first DOMA's day at the Supreme Court. David Savage, Supreme Court correspondent for the Los Angeles Times and Chicago Tribune, joins us now by phone from his office here in Washington. David, always nice to have you back.

DAVID SAVAGE: Hi Neal.

CONAN: And I have to ask you again to set the scene for us, yesterday very dramatic as gay marriage really had its first arguments in front of the Supreme Court. What was it like today?

SAVAGE: A little less dramatic, a little more routine and mundane, a lot of procedural arguments about - at the beginning, the first hour. But the lineup I thought was very much the same. Justice Kennedy and the four liberal justices - Ruth Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan - all made pretty clear that they are going to incline to strike down the part of DOMA.

They differed a little bit. Kennedy said marriage has always been a matter of state law. Why is the federal government, in a sense, getting in and, sort of, redefining - telling states who's married and who's not. And the four liberal justices not only agreed with that, they said, as the Obama administration attorney said, that this is just a flat-out denial of the equal protection of the laws.

It creates two classes of married couples in this country, some who get full federal benefits and some who get none.

CONAN: Well, we'll find out how they got there as we listen to some of the arguments. We want to go back to some of those procedural discussions, and this has to do with - well, it's the case of standing, who's defending this law. Now we've heard that the Obama administration rejects the law as unconstitutional. There are a couple of aspects of that that the justices wanted to talk about.

First of all you have the conflict between a president who, under Clause 2 of the Constitution, is required to faithfully execute the laws; and then the president, under Clause 3, who is placed in the awkward position of trying to enforce a law he believes to be unconstitutional.

SAVAGE: Yes, and you know, the - President Obama did what, I think, he thought was the right thing to do based on the two clauses you mention, which is that he has said we will continue to enforce DOMA - that is, these gay couples do not get federal benefits - but we're not going to defend the law in federal court, and we want a final ruling from the Supreme Court saying that it's unconstitutional.

At that time we'll - we believe it's unconstitutional. We don't want to enforce it, but we think we're obliged to enforce it until it's declared unconstitutional.

CONAN: Now the conservative justices on the court were also troubled by - the president is not the only federal official, of course, this affects. It's the attorney general, as well. And the conservative justices troubled by the fact that the Justice Department is meant to enforce a law it finds unconstitutional. We're going to listen to an exchange between Chief Justice John Roberts and Justice Department lawyer Sri Srinivasan. Justice Roberts says we're - well, this is a phrase that's coming up a lot - in uncharted waters here. Justice Antonin Scalia weighs in a bit later.

CHIEF JUSTICE JOHN ROBERTS: You're asking us to do something we have never asking us to do something we have never done before to reach the issue in this case.

SRI SRINIVASAN: Let me say two things about that if I might, your honor. First is that it's unusual, but that's not at all surprising because the...

ROBERTS: No, it's not just - it's not unusual. It's totally unprecedented.

SRINIVASAN: Well, it's totally unprecedented in one respect, your honor. If you look at Chadha, OK, the second point I'd make. Let me make one point at the outset, though, which is that whether it's totally unusual or largely unusual, I grant you that it doesn't happen. But the reason it doesn't happen is because - I wouldn't confuse a numerator with a denominator. This set of circumstances just doesn't arise very often. Now, it's true that when this set of circumstances...

JUSTICE ANTONIN SCALIA: It has not arisen very often in the past, because in the past, when I was at the Office of Legal Counsel, there was an opinion of the Office of Legal Counsel which says that the attorney general will defend the laws of the United States, except in two circumstances: Number one, where the basis for the alleged unconstitutionality has to do with presidential powers. When the presidential powers are involved, he's the lawyer for the president. So he can say we think the statute's unconstitutional, I won't defend it.

The second situation is where no possible rational argument could be made in defense of it. Now, neither of those situations exists here. And I'm wondering if we're living in this new world where the attorney general can simply decide, yeah, it's unconstitutional, but it's not so unconstitutional that I'm not willing to enforce it.

If we're in this new world, I don't want these cases like this to come before this court all the time. And I think they will come all the time if that's - if that's the new regime in the Justice Department that we're dealing with.

CONAN: And David Savage, as you listen to that argument, yes, there's a conflict, the attorney general and the president are caught between a rock and a hard place. They're required to defend the laws on the - to uphold the law. On the other hand, they have come to the conclusion it's unconstitutional. Nevertheless, you can see the court's point of view is this is a real mess.

SAVAGE: Yes, it is. I do think this is something that, as you could tell, that John Roberts and Justice Scalia feel very strongly about. Both of them were in the Justice Department. And I think that there's something to be said for the - they've got a very valid point.

I mean, imagine had Mitt Romney been elected in November, and the Romney administration were now in office; somebody filed a new lawsuit, let's say in Alabama, challenging part of the Affordable Care Act. And a federal judge struck it down, and the new Romney administration said, well, we're not going to defend the law, we've decided that big parts of the Affordable Act - I think a lot of Americans think wait a minute, Congress passed that law, it should be constitutional, and the Romney administration should defend it.

So I agree with - there's something to be said for what Justice Scalia said, is this is a problem if we start down the road of the president not enforcing laws. On the other hand, a lot has changed since 1996. A lot of - almost every judge who's heard this case recently has said the Defense of Marriage Act is unconstitutional. There were no legally married couples back in 1996. Now when they're faced with it, they say how in the world can we deny benefits to legally married couples?

And so on that basis, the Obama administration decided that the law is unconstitutional and should be struck down. So I agree that, sort of an odd procedural situation, but it - if the Justice Department were to do this regularly, I can see Justice Scalia's point that it could cause a real headache.

CONAN: Well, so the Obama administration, the government, will not defend the law. That left it to House Republicans, the so-called Bilateral Legislative Advisory Group, or the BLAG, to take up defense of the DOMA - Defense of Marriage Act. And there's a big question, also, well, what's their standing, what's their right to be in this act at all?

SAVAGE: Yes, that's right. I mean, the court has said in the past that legislators do not have independent standing to go to court, and a number of years ago they wanted some lawmakers - senators wanted to challenge the Line Item Veto Act. And the court threw them out and said sorry, you can't - you can fight in Senate, but you're just an ordinary citizen outside, and you don't have any independent standing.

So yes, that same issue - there was some discussion about whether Paul Clemente and the House Republicans have standing to step in and defend the law.

CONAN: And so their argument is, well, we were harmed. We have a dog in this fight, and it was interesting, since the Obama administration agrees with them, they should be able to defend the act, then the justices, the Supreme Court had to appoint a lawyer to argue the other side.

SAVAGE: Yes, this is one of these things that you would want to have as a procedural lesson in a law school class, because it's got all kinds of complexities to it. I must say, Neal, on the bottom line, the reason I've thought that in the end, the justices are going to find a way to decide this case, is what happens if they don't.

And there are a lot of cases where somebody goes to court and complains, and the court says you don't have standing. For example, the example I mentioned about the senators. But somebody else went in and complained about the Line Item Veto Act, and they did have standing.

But if the Obama administration, which represents the executive branch, won't defend the law and the House Republicans can't defend the law, what in the world happens? Because in New England and in New York, the Defense of Marriage Act has been declared unconstitutional, it's presumably constitutional in the rest of the country, and that's what we have the Supreme Court for. They're supposed to, you know, make sure federal law is the same everywhere.

So somebody - somewhere along the line they've got to decide this question, and that's why after all this procedural debate, something tells me that they will find a way to decide this issue.

CONAN: There was an argument that, you know, this case doesn't apply, but we could wait for the next case to come up. And then the counter-argument, why would the next case be decided any differently than this one, why would the standing arguments be any different next time?

SAVAGE: Yes, that's - I think that's exactly right. You could say, well, bring us another case, but you'd have the same problem is that somebody else would sue, and then who's going to defend the law? Well, the only people who want to defend it are the House Republicans. So I don't see how they get out of this box.

CONAN: And so then on to the merits of the case, and this is where you talk about the case, and again we're talking about Defense of Marriage Act passed overwhelmingly by Congress back in 1996, signed by a Democratic president, William Jefferson Clinton, who has since changed his mind on this. Indeed, the original House sponsor of the bill, Bob Barr, has changed his mind on this. They now regard this as unconstitutional because, well, everybody has a different remark on this, and we'll find out how the justices see it as they listen to arguments from various sides on this.

David Savage of the Los Angeles Times is with us, and we're going to hear more excerpts from the oral arguments before the Supreme Court today on the Defense of Marriage Act. Stay with us. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.

(SOUNDBITE OF MUSIC)

CONAN: This is TALK OF THE NATION from NPR News. I'm Neal Conan. This morning, the Supreme Court heard arguments for and against DOMA, the Defense of Marriage Act. It's an unusual case in that the Obama administration opposes the legislation, which was passed by Congress nearly 20 years ago. Indeed, the Obama administration considers it unconstitutional and sides with the challenger, Edith Windsor.

Republican leadership in the House of Representatives hired Paul Clement, former solicitor general during the Bush administration, to defend the act itself. And the court appointed current deputy solicitor general Sri Srinivasan to argue the point of standing. The court released tape from the arguments just a couple of hours ago.

David Savage of the Los Angeles Times is back with us to tell us what he heard from the court today. We're going to be listening to some of the arguments. We're getting now to the merits of the case. And this is on the argument of many of the liberal members of the court, the four members of the liberal wing of the court, who find that the Defense of Marriage Act is unconstitutional because it denies legally married couples the same benefits of other legally married couples, in other words under the Equal Protection Clause of the Constitution.

And this is an exchange between Chief Justice John Roberts and Justice Department lawyer Sri Srinivasan. Justice Roberts says - excuse me, this is - this is the wrong cut. This is solicitor general - former solicitor general Paul Clement, who is defending the constitutionality of the DOMA. Justice Ginsburg says benefits granted to married couples are more than just benefits. They touch all aspects of life.

JUSTICE RUTH BADER GINSBURG: Your partner is sick. Social Security. I mean, it's pervasive. It's not as though, well, there's this little federal sphere, and it's only a tax question. It's - as Justice Kennedy said, 1,100 statutes, and it affects every area of life. And so he - really diminishing what the state has said is marriage. You're saying, no, state, there are two kinds of marriages: the full marriage and then this sort of skim-milk marriage.

(LAUGHTER)

PAUL CLEMENT: With respect, Justice Ginsburg, that's not what the federal government's saying. The federal government is saying that within its own realm, in federal policies, where we assume that the federal government has the authority to define the terms that appear in their own statutes, that in those areas, they are going to have their own definition. And that's...

JUSTICE ELENA KAGAN: Mr. Clement, for 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.

So we have a whole series of cases which suggest the following, which suggest that when Congress targets a group that is not everybody's favorite group in the world, that we look at those cases with some - even if they're not suspect, with some rigor to say do we really think that Congress was doing this for uniformity reasons, or do we think that Congress' judgment was infected by dislike, by fear, by animus, and so forth?

I guess the question that this statute raises, this statute that does something that's really never been done before, is whether that sends up a pretty good red flag that that's what was going on.

CLEMENT: A couple of responses, Justice Kagan. First of all, I think I would take issue with the premise, first of all, that this is such an unusual federal involvement on an issue like marriage. If you look at historically, not only has the federal government defined marriage for its own purposes distinctly in the context of particular programs, it's also intervened in other areas, including in state prerogatives.

I mean, there's a reason that four state constitutions include a prohibition on polygamy. It's because the federal Congress insisted on them. There is a reason that, in the wake of the Civil War and in Reconstruction, Congress specifically wanted to provide benefits for spouses of freed slaves who fought for the Union.

In order to do it, it essentially had to create state law marriages because in the Confederacy, the slaves couldn't get married. So they developed their own state - essentially a federal sort of condition to define who was married under those laws. So where there have been needs in the past to get involved, the federal government has got involved.

The other point I would make, but I also eventually want to get around to the animus point, but the other point I would make is: When you look at Congress doing something that is unusual, that deviates from the way they have proceeded in the past, you have to ask: Well, was there a good reason? And in a sense, you have to understand that, in 1996, something's happening that is, in a sense, forcing Congress to choose between its historic practice of deferring to the states and its historic practice of preferring uniformity.

Up until 1996, it essentially has it both ways: Every state has the traditional definition. Congress knows that's the definition that's embedded in every federal law. So that's fine. We can defer. OK, 1996...

KAGAN: Well, is what happened in 1996 - and I'm going to quote from the House Report here - is that Congress decided to reflect and honor a collective moral judgment and to express moral disapproval of homosexuality. Is that what happened in 1996?

CLEMENT: 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. But that's never been your approach, especially under rational basis or even rational basis-plus, if that's what you're suggesting.

This court, even when it's applying more heightened scrutiny, the O'Brien case we cite, it suggests, look, we are not going to strike down a statute just because a couple of legislators may have had an improper motive. We're going to look, and under rational basis, we look: Is there any rational basis for the statute?

CONAN: And again that's Paul Clement, in defense of the Defense of Marriage Act on behalf of House Republicans facing some scathing questioning from Justice Elena Kagan. And David Savage, that part that she read from the House Report, not part of the bill itself, but the House Report, suggesting that there was animus here, that the motive in passing this bill was to discriminate against homosexuals.

SAVAGE: Yes, that's right. The - I thought it was interesting she brought that up because that statute is from a different time, different era. You know, it's only 16, 17 years ago, but Congress was very willing to say, and a big majority supported the law, is that there was a fear that if one state, Hawaii, allowed same-sex marriages, it would somehow spread across the country through the Full Faith and Credit Clause. And so they rushed to pass DOMA to say we're only going to recognize marriages between a man and woman.

That sort of interstate thing never came to pass. The federal benefits provision still stands. And it looks very outdated. I thought it was interesting that when Elena Kagan said that, Paul Clement wasn't willing to defend it or say anything that said, well, yeah, that was one of the reasons.

He said if that's the reason it was passed, then you could invalidate it on that basis, but we think there are some other reasons. And his other reason is a uniform definition of federal - of marriage, that we want one - it simplifies - it's sort of an administrative thing. It simplifies benefits and everything if there's one definition.

But a lot of the justices came back and said, well, wait a minute, there is one definition. If you are married in your state, you're married. You know, if you send in a tax return - some lawyer said last weekend if one person's name is Chris(ph), and one person's name is Tracy(ph), and they filed a joint - the IRS doesn't say hey wait a minute, are you sure those two - that represents one man and one woman? As long as you're married, legally married, you can marry - you know, the presumption is you are married for the purposes of the law.

CONAN: There is also - you mentioned the part of the - another part of the law, which is not being called into question here, and that's about reciprocity. Normally if you have a driver's license in New York, it's perfectly valid in the state of Alabama, as long as you're just passing through, more or less. And this is - if you are married in the state of New York, normally that's recognized in the state of Alabama, as well. Not under this.

SAVAGE: That's right, that's correct, and that provision is not being challenged in this litigation. The only challenge is to the notion of the couples who are legally married say we want to be treated equally and treated the same. We're not saying we have a right to move from New York to Alabama, and Alabama must recognize our marriage.

CONAN: And that is - comes up in this next clip of tape. We mentioned, of course, the Obama administration sides with those who oppose the DOMA, the Defense of Marriage Act, but it didn't mean it didn't have a place in the arguments. This is the solicitor general, Donald Verrilli, talking about how in his opinion the law violates equal protection. And there's a considerable challenge on this idea of federalism. Is it the government, the federal government that defines this, or should this be left to the states?

DONALD VERRILLI: What Section 3 does is exclude from an array of federal benefits lawfully married couples. That means that the spouse of a soldier killed in the line of duty cannot receive the dignity and solace of an official notification of next of kin.

ROBERTS: I suppose your - you agree that Congress could go the other way, right? Congress could pass a new law today that says we will give federal benefits - when we say marriage in federal law, we mean committed same-sex couples, as well, and that could apply across the board. Or do you think that they couldn't do that?

VERRILLI: We think that wouldn't raise an equal protection problem like this statute does, Mr. Chief Justice.

ROBERTS: Well, no, my point is it wouldn't - you don't think it would raise a federalism problem either, do you?

VERRILLI: I don't think it would raise a federalism problem.

ROBERTS: OK.

VERRILLI: And I - but I think - but the key for the - for our purposes is that, in addition to denying these fundamental important - fundamentally important benefits, is who they're being denied to.

ROBERTS: So just to be clear, you don't think there's a federalism problem with what Congress has done in DOMA.

VERRILLI: We - 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, but it's the equal protection violation from the perspective of the United States.

JUSTICE ANTHONY KENNEDY: You think Congress can use its powers to supersede the traditional authority and prerogative of the states to regulate marriage in all respects? Congress can have a uniform definition of marriage that includes age, consanguinity, et cetera, et cetera?

VERRILLI: No, I'm not saying that, your honor. I think if Congress passed such a statute, then we'd have to consider how to defend it.

CONAN: And that's, again, the solicitor general, Donald Verrilli, mostly there with John Roberts, the chief justice; right there at the end, Justice Anthony Kennedy. Federalism. How does that play into this, David Savage?

SAVAGE: Well, Justice Kennedy, you heard in the end of that clip, his view is that marriage has always been a matter of state law and that this statute sort of intervenes and tries to regulate marriage from the federal government. And Kennedy's view is a matter of federalism, meaning, you know, the states get to decide some things and the federal government gets to decide others. Kennedy views marriage as - and divorce - these are matters of state law.

And so I think he's inclined to write an opinion that says this is unconstitutional because it tramples essentially on the states' turf. And you heard Donald Verrilli and the more liberal justices say, well, we, you know, in some level, we could agree with that. Justice Kagan seemed to agree. But they want to say this is a denial of the equal protection of the laws.

So, one way or another, it seems to me that there are five justices who are opposed to DOMA as it exists, and they have different rationale: one federalism and one - and so-called equal protection violation.

CONAN: And if they all agree it's unconstitutional, it doesn't matter what their rationale is. That's the majority.

SAVAGE: Yes. Yes. It - one way or another, it seems to me they will - the liberal justices will either sign on to Justice Kennedy's opinion and say, and besides, we also think it's an equal protection violation, or they can all get together and - but the main thing is the five of them are likely to agree it's unconstitutional and the statute falls on that basis.

CONAN: David Savage, Supreme Court correspondent for the Los Angeles Times and the Chicago Tribune, who was at the Supreme Court earlier today listening to arguments over DOMA, the Defense of Marriage Act. You're listening to TALK OF THE NATION from NPR News.

And one more clip of tape. This is Justice Stephen Breyer questioning Roberta Kaplan, who is the attorney who represents the litigant in this case, the person who challenged the law because her marriage was in Canada and then the - required to pay federal tax, excise - estate tax after her partner died, which she would not have had that been a same - an opposite-sex marriage. Anyway, Justice Stephen Breyer brings up a point about why the federal government has an interest in defining marriage.

JUSTICE STEPHEN BREYER: Look, the federal government needs a uniform rule. There has been this uniform one man, one woman rule for several hundred years or whatever, and there's a revolution going on in the states. We either adopt the resolution - the revolution or push it along a little, or we stay out of it. And I think Mr. Clement was saying, well, we've decided to stay out of it.

ROBERTA KAPLAN: I don't...

BREYER: A way to stay out of it is to go with the traditional thing. I mean, that - that's an argument. So your answer to that argument is what?

KAPLAN: I think it's an incorrect argument, Justice Breyer, for this reason...

BREYER: I understand you do. I'd like to know the reason.

(LAUGHTER)

KAPLAN: Of course. Congress did not stay out of it. Section 3 of DOMA is not staying out of it. Section 3 of DOMA is stopping the recognition by the federal government of couples who are already married, solely based on their sexual orientation. And what it's doing is undermining, as you can see in the briefs of the states of New York and others, it's undermining the policy decisions made by those states that have permitted gay couples to marry, states that have already resolved the cultural, the political, the moral, whatever other controversies, they're resolved in those states. And by fencing those couples off, couples who are already married, and treating them as unmarried for purposes of federal law, you're not taking it one step at a time. You're not promoting caution. You're putting a stop button on it, and you're having discrimination, for the first time in our country's history, against a class of married couples.

JUSTICE SONIA SOTOMAYOR: The discrimination is on not the sexual orientation, but on a class of marriage? Is that what you're...

KAPLAN: It's a class of married couples who are gay.

CONAN: David Savage of the Los Angeles Times and the Chicago Tribune. As we look back at these two days of arguments, it's remarkable to those of us who don't do this for a living. How much time was spent on procedural issues, those issues of standing?

SAVAGE: Well, quite a bit, Neal. I - my sense is that it is true that both of the cases had an unusual posture because California state attorneys would not defend Proposition 8, and the federal - the Obama administration attorneys would not defend DOMA. So that's a little bit of an unusual situation.

My belief, though, is that John Roberts, the chief justice, who's a stickler for procedure and precedent - procedure would sort of like both of these cases to go away. And he was the one probably arguing the most strongly, in both cases, on the procedural issues. I think he wanted to schedule the extra time on the procedure.

So it sort of - it makes it hard to read, makes it complicated to figure out how they're going to decide it. But as I said earlier, I do think, in the case of DOMA, that they've got to resolve the constitutionality of a federal law that's been struck down some places and upheld others.

CONAN: It again strikes what is unusual that given the opportunity to decide a fundamental case that's going to be debated for decades, likely, that the instinct of at least the chief justice is to duck.

SAVAGE: Yes. I think he knows the votes are going to go the wrong way on this. My hunch is that there'll be a five to four vote to strike down DOMA. As I said, that Kennedy will write an opinion, and then it's very hard to figure out what they do with Prop 8. My guess is that there are five of them to allow gay marriage to resume in California. But they could do it a number of different ways.

When these cases came up in the fall, we actually thought that they would hold the Prop 8 case until they had decided the Defense of Marriage case, and then sort of send back Prop 8 to California to the 9th Circuit. I still think that's a possibly. In June, they might hand out a big decision explaining why the Defense of Marriage Act is unconstitutional, talk about equal protection for gay couples, and then send the case back to California, because there was a strong sense yesterday that even the liberal justices did not want to, you know, go too far, too fast to mandate gay marriage across the country.

CONAN: David Savage, thanks very much, as always, for your time. We'll certainly be talking in June.

SAVAGE: Thanks, Neal.

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