Justices signal they might strike down federal marriage law

Art Lien/NBC News

Vicki Jackson argues before the Supreme Court on March 27, 2013 in this sketch from NBC's Art Lien.

By Tom Curry, National Affairs Writer, NBC News

Hearing a challenge to the Defense of Marriage Act, which allows federal benefits to go only to heterosexual married couples, the Supreme Court appeared skeptical of the statute and indicated that it might strike down the 1996 law.
At issue Wednesday’s oral argument was the Defense of Marriage Act, known as DOMA, passed by overwhelming margins in both houses of Congress in 1996 and signed by President Bill Clinton. A section of the law, in effect, bars federal agencies from recognizing same-sex marriages, even in the states where they are legal.

Listen: Audio of the oral arguments

United States v. Windsor
Docket Number: 12-307
Date Argued: 03/27/13
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 Oral Argument - Audio

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IN THE SUPREME COURT OF THE UNITED STATES UNITED STATES, vs EDITH SCHLAIN WINDSOR, DOMA[Defense of Marriage Act] by Peggy Satterfield

After the oral arguments, NBC News Justice Correspondent Pete Williams reported that there seemed to be the five votes on the court that would be needed to invalidate the law.
Williams said Justice Anthony Kennedy – viewed by some court observers as the swing vote in the case – indicated that he had problems with law: whether Congress and the president had the right to say what marriage is, instead of leaving the legal definition for each state to make.
Kennedy also seemed troubled by what he saw as the lack of narrow focus in the 1996 law. He said DOMA also applies in the nine states that have decided to permit same-sex marriages as well as in the states that do not permit it.

NBC News Justice Correspondent Pete Williams reports from outside the Supreme Court on oral arguments about the Defense of Marriage Act.

Williams also reported that the liberal justices attacked DOMA on the grounds that it diminished marriages between same-sex couples in the nine states that have chosen to legalize such marriages.

Williams reported that Justice Ruth Ginsburg said that the federal rules which apply to married couples are so pervasive that in the states that permit same-sex marriages, married same-sex couples could not get the federal benefits couples that heterosexual couples get, and therefore would end up with “a skim milk marriage.”
But Williams cautioned that before the justices even reach the question of the legal merits, they must first decide whether the Obama administration and the House of Representatives have standing to be involved in the case. It remains unclear how a majority of justices will decide that legal standing question.
The Obama administration – even though it was the nominal defendant in the case – urged the federal appeals court in New York to rule in favor of Windsor. So in essence, the Obama administration won in the appeals court and the high court normally doesn’t allow the victorious side in a case to appeal.
Court observers caution that one should not read too much into the questions the justices ask during oral argument since they don’t necessarily reflect how any particular justice would ultimately vote in the case.
The oral argument came a day after the court signaled that it is unlikely to issue a sweeping ruling declaring that same-sex couples have a constitutional right to marry.
More than 1,000 federal laws and programs have rules whose application depends in part on a person’s marital status.
At issue Wednesday was the application of the federal estate tax to a lesbian couple who had been married in Canada and lived in New York. As executor of Thea Spyer’s estate, Edith Windsor paid more than $360,000 in federal estate taxes. Windsor seeks a refund on the ground that she is Spyer’s surviving spouse. Under federal law, property that passes to a surviving spouse is generally free from estate taxes.

Defense of Marriage Act opponent Edie Windsor discusses Wednesday's hearing at the Supreme Court.

“I couldn't believe that they were making a stranger of this person I lived with and loved for 43-something years,” Windsor said. She sued the federal government, and two lower federal courts found that DOMA amounted to unconstitutional discrimination.
As the case wound its way through the legal process, the Justice Department, originally her adversary, became her ally.
Two years ago, Attorney General Eric Holder notified Congress that he and President Barack Obama had concluded that "classifications based on sexual orientation" were inconsistent with the Constitution's guarantee of equal protection under law. The Justice Department stopped defending DOMA in court.

Taking up its defense was the Bipartisan Legal Advisory Group, representing the House Republican leadership.
The Bipartisan Legal Advisory Group  –represented in Wednesday’s oral arguments by Paul Clement who served as solicitor general under President George W. Bush – contends that the House has legal standing to defend a law when the executive branch refuses to do so.
Clement says in his brief that legal victory for Windsor “would harm the House’s concrete interests by permanently nullifying its passage of DOMA and subjecting future legislative action to a heightened standard of equal protection review.” Upholding the lower court’s ruling that DOMA is invalid would “permanently diminish the House’s legislative power,” Clement says in his brief.
The justices asked the lawyers arguing the case to deal with the question of whether the Bipartisan Legal Advisory Group meets the legal rule requiring that a party to a case claim some specific injury.  It may not be enough for the House members to assert that they want to see DOMA enforced.
To help the court navigate these potential roadblocks, it appointed a Harvard Law School professor, Vicki Jackson, to argue the jurisdictional issues during Wednesday's courtroom session.
Passed by the House in 1996 by a vote of 342 to 67, the Defense of Marriage Act includes one section that says for purposes of federal law marriage is defined as “only a legal union between one man and one woman as husband and wife.”
Another part of the law says that states which do not permit same-sex marriages can’t be forced to recognize a same-sex marriage from another state.
President Bill Clinton signed the bill into law and in the 1996 presidential campaign, and his campaign ran radio ads touting that fact. But Clinton recently wrote in the Washington Post, “I have come to believe that DOMA is contrary to those principles and, in fact, incompatible with our Constitution.”
Fifty-three of the 342 House members who voted for the Defense of Marriage Act in 1996 are still serving in the House.
Others who were serving in the House in 1996 and who voted for DOMA – including Charles Schumer of New York and Robert Menendez of New Jersey – have moved up to the Senate.
Both Schumer and Menendez signed a friend of the court brief with other Democratic members of Congress urging the Supreme Court to strike DOMA down. In their brief they said in 1996 Congress “deliberately chose to forego any examination of how DOMA would affect the many federal laws that take marital status into account, the families that it hurts, or the federal government’s long history of respecting the significant variability in state marriage laws ... .”

Jewel Samad / AFP - Getty Images

Same-sex marriage supporters demonstrate in front of the Supreme Court on March 27, 2013 in Washington, D.C.

In its brief, the Obama administration contends that gay and lesbian people have been subject to discrimination and are “minorities with limited political power.” Therefore, it argues, the Supreme Court must apply what is called “heightened scrutiny” to see if DOMA is discriminatory and once it does it will determine that section 3 of DOMA violates the Constitution’s guarantee that each person will have equal protection of the laws.
In recent years, nine states, either through court rulings, legislation, or ballot measures, have redefined marriage to include same-sex couples. Despite that, more than three quarters of the states have laws or constitutional provisions that define marriage as the union of one man and one woman.
NBC News Justice Correspondent Pete Williams contributed to this story.