Argument preview: Marriage and the Court’s “friends” — Part II

This is the second of two articles examining the arguments made in the Supreme Court’s two same-sex marriage cases by the “friends of the Court” — the amici who have filed written briefs. This article deals with the amici arguments in the case involving the federal Defense of Marriage Act, United States v. Windsor (12-307), set for a hearing at 10 a.m. on Wednesday.  Part I, dealing with the amici briefs in the case of California’s Proposition 8, appeared Sunday and can be read here.   Because the two cases raise some parallel issues, this post repeats some of the background material from the first post, and follows the same format in discussing the arguments of the amici.

The role of amici

Under the Supreme Court’s rules, a brief from an amicus curiae (amicus, for short, or amici in the plural) is supposed to bring to the Court’s attention “relevant matter not already brought to its attention by the parties.” If a brief does not do so, the rule adds, the document “burdens the Court, and its filing is not favored.” But that is a rule that is not rigorously enforced: many amici briefs make arguments exactly or at least closely parallel to those made by the parties, and many of these briefs overlap with each other. Sometimes they speak in the narrow scope of an advocacy group’s or another entity’s special interests, sometimes they sweep quite broadly. And many do, indeed, enlarge the Court’s perspective on the potential impact of this or that decision, and it is not uncommon for such a brief to be quoted directly in an opinion of the Court. In a case with the high visibility, and potentially broad impact, of the same-sex marriage cases, scores of those briefs are filed. There are ninety filed in the Defense of Marriage (DOMA) case; two dozen of those also apply to the Proposition 8 case.

To file an amicus brief, it is necessary to have either the consent of the parties, or consent of the Court. In the DOMA case, the parties gave blanket consent to all such briefs. Most amici speak to the Court only through their written arguments; except for the federal government when it is acting as an amicus, amici do not often get permission to take part in oral arguments.

Copies of all of the briefs filed in the Defense of Marriage Act case — by the parties and the amici — can be found at this link.  A post discussing the arguments of the Obama administration’s briefs in this case (this time, it is a party, not an amicus) can be read here.  Posts discussing the arguments of the defender of DOMA (the Republican leaders of the House of Representatives, in their capacity as the majority members of the House’s five-member Bipartisan Legal Advisory Group) can be read here and here.  Posts discussing the briefs of the individual involved in this case — Edith S. Windsor, the New York City woman who successfully challenged DOMA in lower courts over her claim for a refund of a federal tax on the estate of her deceased same-sex spouse– can be read here and here.

The Court’s authority to rule

The Supreme Court simply does not have the power, constitutionally speaking, to rule on the validity of the Defense of Marriage Act — or on any case — unless it is assured that there is a live “case or controversy” actually before it. The Constitution’s Article III limits the federal courts, including the highest court, to deciding cases in which, at every stage, there is a genuine dispute between two opposing sides, each of whom had “standing” — in other words, a legal right to be there.

To have “standing,” under Article III, each side must show that it has a direct, not a theoretical, interest in the case, and that its claim is one that can be vindicated by the court, if, in the end, it were to win.

When the Court on December 7 granted review of United States v. Windsor, it told the lawyers to file briefs and be prepared to argue orally on whether the Court had jurisdiction to rule on the federal government’s case, and whether the House GOP leaders as  defenders of DOMA had Article III “standing” to pursue their appeal to the Supreme Court, following the decision by the Second Circuit Court striking down that law.  After the Obama administration had stopped defending the law two years ago, and began arguing that it was unconstitutional, the House GOP leaders rallied to its defense in courts around the country, and those lawmakers are the only ones in that role now before the Court.

Because the Obama administration and the House GOP leaders each contested the other’s right to appeal, the Court appointed a special amicus to argue those jurisdictional issues so that the Court would have opposing arguments on each.  Selected for that task was Harvard law professor Vicki C. Jackson.

Because of the participation of Ms. Jackson in the case, and her inclusion in the hearing Wednesday, the Court has allowed argument time almost twice as long as the one hour it allotted for the Proposition 8 case.  It is dividing the hearing between the jurisdictional issues and the constitutionality of DOMA.  Ms. Jackson will go first in the hearing with thirty minutes of time.  She will be followed by Deputy Solicitor General Sri Srinivasan, arguing for the government’s right to appeal, with fifteen minutes, and then the House GOP leaders’ lawyer, Paul D. Clement of the Washington office of Bancroft PLLC, also with fifteen minutes, arguing the lawmakers’ Article III “standing.”

When the Court turns to the constitutional question, Clement will go first to defend DOMA, for thirty minutes, followed by Solicitor General Verrilli with fifteen minutes, and then Roberta A. Kaplan of the New York office of Paul, Weiss, Rifkind, Wharton & Garrison LLP, representing Ms. Windsor, also with fifteen minutes.

When this case began in U.S. District Court in New York City, in November 2010, there was no doubt of the authority of Judge Barbara S. Jones to decide it.  Ms. Windsor was on one side and the federal government on the other; she had a claim for a refund of about $363,053 that she had paid when her same-sex spouse, Dr. Thea Spyer, died and left an estate.  As Dr. Spyer’s health deteriorated, the two decided to get married, and they did so in Canada; New York State at that time did not allow same-sex marriages.

Three months after Ms. Windsor sued, the Obama administration — after making some preliminary gestures that it was going to defend DOMA against Ms. Windsor’s claim — changed position, and concluded that the law’s Section 3, limiting all marital benefits to opposite-sex couples, was unconstitutional.  Even so, the government was still enforcing the law while court challenges unfolded, so it refused to pay Ms. Windsor the refund.  It was clear, at that point, that both the government and Ms. Windsor had “standing,” so their dispute was a true controversy in the Article III sense.

The House GOP leaders, defending DOMA’s provision, moved to join the case, arguing that the BLAG entity had a right to intervene.  The administration argued that those lawmakers and their group did not have standing, but that they should be allowed into the case in order to present arguments on DOMA’s validity, but not as a full party.  Judge Jones let the leaders in as intervenor as a full party in the case to make the defense, and she found that it did have Article III “standing.”

After Judge Jones in June of last year struck down Section 3 and ordered the government to pay the refund, appeals were filed in the Second Circuit Court by the government, Ms. Windsor, and the House GOP leaders.  Both the government and Ms. Windsor then asked the Supreme Court to take on the case without waiting for the Second Circuit Court to rule on the appeals.  (While the case continues in the Court, Ms. Windsor’s refund claim remains unpaid.)

Before the Supreme Court could act on the suggestion to bypass the Second Circuit, however, the Circuit Court decided the case.  In doing so, it did not question the government’s right to appeal, nor did it second-guess the House GOP leaders’ “standing” to appeal.  By a divided two-to-one vote, it agreed with Judge Jones, and struck down Section 3.  In doing so, it became the first federal appeals court to apply a more rigorous constitutional test (“heightened scrutiny”) to a law that allegedly discriminated against gays or lesbians because of their sexual orientation.   Before that, in every gay rights case, the federal appeals courts had used a more tolerant standard (“rational basis”).

The Supreme Court, in agreeing to hear the administration appeal (docket 12-307), then added the jurisdictional questions to be briefed and argued along with the constitutional question.

Amici opposing jurisdiction

Harvard professor Vicki Jackson, in her appointed assignment to argue that the Court should not decide the DOMA case now, has filed two briefs energetically urging the Court to take a pass for the time being.   She has contended that the Court has no jurisdiction over the federal government’s case because it pursued and won its challenge to DOMA in the lower courts in support of Ms. Windsor’s case. Ms. Jackson contended that the House GOP leaders do not satisfy Article III’s “standing” requirements because they have not suffered any legal injury in this case, they are only a small unit within the House, they do not speak for Congress as a whole and, in any event, Congress simply cannot stand in for the executive branch to counsel the courts on the constitutionality of a federal law.  (Posts discussing more fully her filings can be read here and here.)

There is only one other amicus brief that makes an argument against a ruling by the Court in the DOMA case, but it does so only conditionally.  It is a strongly worded filing by former U.S. Attorneys General Edwin Meese III and John Ashcroft, both Republicans, lambasting the Obama administration for giving up on the defense of DOMA and urging the Court, if it does not find Article III “standing” for the House GOP leaders, to forgo deciding the case at all.

That brief does not take an explicit position on the lawmakers’ “standing,” but does so implicitly by saying that, without them in the case, there are no legal combatants left because both the administration and Ms. Windsor are on the same side, attacking DOMA.  “In the absence of BLAG,” the brief said, “there is no case or controversy.”  It would not be appropriate, the document added, for the Court to pick a special amicus to defend the law in BLAG’s place.

The bulk of that brief, though, is an argument supporting its assertion that the administration’s abandonment of DOMA’s defense was “unprecedented in Executive Branch history” spanning two centuries, and its separate assertion that the administration was trying to get the courts to invalidate DOMA because it was unable to get Congress to repeal it, thus endangering the constitutional separation of powers among the branches.

Some three dozen amici briefs have been filed urging the Court to strike down DOMA’s Section 3, and it thus is no surprise that not one in that group questions the Court’s jurisdiction to hear the government petition or questions the House GOP leaders’ “standing” to be in court to make its defense.

It is obvious, then, that if there is to be a serious challenge in this case to the Court moving past the jurisdictional questions and reaching the constitutional issue for decision, it is going to have to come almost exclusively from Harvard’s Jackson.

Amici supporting jurisdiction

There are a half-dozen amici briefs that are devoted solely to the Court’s authority to rule on DOMA’s validity, and they reach the same bottom line in favor, but come to that point from differing perspectives.  Four of those filings support the Court going ahead on the premise that the administration’s continued enforcement of the law keeps the controversy going with Ms. Windsor, but one of those provided a strong echo of the fierce denunciation by the Meese-Ashcroft brief of the government’s abandonment of the defense of DOMA.

That brief, filed by the conservative advocacy group Center for Constitutional Jurisprudence, likened the dropping of DOMA’s defense to the Founders’ resentment of King George III’s suspension of laws passed by the American colonies.  The Founders, the brief said, put into the Constitution a requirement that the president make sure that federal laws are enforced precisely to avoid the chief executive having a “de facto post-enactment veto or suspension power.”

That brief supports the House GOP leaders’ legal right to carry on with the case, even if the administration should now cease its enforcement of DOMA.   Similarly, a brief filed by Citizens United and other conservative advocacy organizations focused on the House GOP leaders’ role, in protecting the legislative prerogative justifying Article III “standing,” and it, too, criticized the administration for claiming the “prerogative power unilaterally to decide the constitutionality of DOMA by refusing to defend it in court.”

A group of former Solicitors General and other ex-Justice Department officials joined in arguing against the Meese-Ashcroft claim that what the Obama administration has done in giving up the defense of DOMA was unprecedented.  And four constitutional law scholars take on Ms. Jackson’s argument, contending that it would lead to”severe adverse practical consequences.”

Another jurisdictional brief is by a federal bankruptcy judge, John Karl Olson, who married his gay partner in Massachusetts and has been denied a request to put his spouse on his survivors’ annuity plan.   Judge Olson argued that the Court clearly has jurisdiction over the administration case, and concedes that the House GOP leaders at least have “piggyback standing” to join in the case.

A number of the amici briefs siding with the House GOP leaders on the merits of DOMA’s constitutionality tack onto their arguments a brief note in favor of according those leaders an Article III right to be in court.

The constitutional issue

Twenty years ago in May, Hawaii’s state supreme court took the country — and Congress in particular — by surprise with a decision that denying same-sex couples equal right to marry would violate the state constitution’s guarantee of legal equality, unless the state could come up with compelling reasons to justify that denial.  That was the historic decision in Baehr v.Lewin, involving three same-sex couples who had been denied licenses to wed.  The state court applied the most demanding constitutional test — “strict scrutiny.”

Within three years, Congress had passed the Defense of Marriage Act, by very large majorities — 342-67 in the House, 85-14 in the Senate; President Clinton signed it into law.  A House Judiciary Committee report denounced the decision in Hawaii, calling it part of an “orchestrated legal assault being waged against traditional heterosexual marriage.”  (An equal right to marry never materialized in Hawaii, because the state constitution was amended to allow the legislature to ban such marriages, and it did so.)

That is the federal law — DOMA, for short — that has now made its way to the Supreme Court, and if the Court decides to rule on its constitutionality, it won’t be the Court’s first ruling on same-sex marriage, but it almost certainly will be its most rigorously examined.  The only other decision by the Court on this issue was a one-line ruling in 1972, in the case of Baker v. Nelson, upholding a Minnesota Supreme Court ruling that it not unconstitutional to deny marriage licenses to a gay couple.  The Justices’ brief order dismissed a challenge to the state court ruling, saying it did not raise a “substantial federal question.”

The Baker decision still plays some role in the ongoing constitutional controversy over same-sex marriage, and it is being relied upon as a precedent by defenders of DOMA.

DOMA’s Section 3, the only part of the law now at issue before the Court, says that “in determining the meaning of any act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”

It is that limitation that Edith Windsor challenged when she sued the federal government in November 2010, and that she and the federal government, along with some three dozen amici in support of her, are asking the Supreme Court to strike down under the federal Constitution — either under the equal protection guarantee or the Due Process Clause of the Fifth Amendment.

Amici challenging DOMA Section 3

The three-dozen amici briefs filed solely to challenge DOMA, and five others that target both DOMA and, in the separate case, California’s Proposition 8, generally have two aims: persuade the Supreme Court to specify, for the first time, a constitutional test that courts must use in judging laws that treat gays and lesbians less favorably (and, for them, the tougher the test, the better), and then to nullify Section 3.   But the second aim definitely emerges as the most urgent, because many of these briefs argue that, no matter how lenient a constitutional standard the Court applied, DOMA cannot survive it.

The constant themes in these briefs are: gays and lesbians are discriminated against because of an identity with which they were born, they are fully capable of performing in society as any straight person, they commit themselves to their lovers just as fervently (and lastingly) as straight people do, they are just as good at parenting as any opposite-sex couple would be, they have been the victims of homophobic bias that continues even as they make strides toward acceptance, and they lack the political power on their own to end that discrimination.

Those are what might be called the rights arguments.  But these briefs also have another constant theme: marriage is a matter for the states, and always has been, and DOMA undertook to override state definitions of marriage. That is the states’ rights, or federalism, argument, and Mrs. Windsor and other challengers make it at least in part because of the simple fact that — in these cases — the challengers are already married under their own states’ laws, and yet DOMA shuts them completely out of federal marital benefits.

A group of “federalism scholars” advanced the most pointed challenge to DOMA on this ground, arguing that the Constitution simply does not give Congress any authority, among its enumerated powers, to define marriage.  “Before this Court addresses whether DOMA denies equal protection of the laws, there is a prior question of federal power,” the brief said with emphasis in its opening.  It is a prior question, it added, because DOMA must fall if it is beyond Congress’s power, whether or not DOMA engenders inequality.  That brief appeared to gain added clout with its signing by Georgetown law professor Randy Barnett, perhaps the most visible scholar of the day pressing limited-government arguments (as in his strong advocacy against the federal health care law and the Commerce Clause limitation argument that a Supreme Court majority embraced even while upholding the health care’s insurance mandate).

In fact, if there is an argument in these briefs that would seem most likely to find some sympathy with Justice Anthony M. Kennedy, a potential “swing” voter here, it is an argument on federalism principles — an area in which Kennedy has written with evident passion.

No doubt aware that the defenders of DOMA would be bringing in religious organizations to make moral arguments against same-sex marriage, the challengers have gathered a lengthy list of mainstream religious groups to make an argument that DOMA is an attempt to establish religious dogma against homosexuality, in violation of the First Amendment’s religion clauses.

There is much argument on this side suggesting that, for all of their recent gains in political and cultural acceptance, gays and lesbians still do not have political power.  “The Court,” a group of political science professors argued, “should not focus on isolated instances in which gay men and lesbians have achieved successful political outcomes.”   There is, it added, a “broader context,” illustrating it with the fact that election victories on same-sex marriage last November compared with more than thirty states’ passage of anti-marriage initiatives in recent years.

Former officials of the Federal Election Commission, in a brief of the political powerlessness theme, suggested that DOMA even limits the right of already married same-sex couples to provide financial support for one spouse’s political campaigning.

Gay rights organizations offered the Court, in several briefs, life stories about the everyday impact of DOMA’s Section 3.  A group of marriage equality organizations, for example, spelled out those stories as an argument against putting off a decision on DOMA’s constitutionality, suggesting that the law creates victims daily.

A flurry of statistics, together with pie-charts and graphs, are featured in a brief by California scholar and Census Bureau adviser, Gary J. Gates, to illustrate how widespread gay culture has become, and thus the practical impact that laws like DOMA can and does have on some eight million adult Americans.

As expected, there are abundant offerings of social science data attesting to the normalcy of gays and lesbians, from various medical and psychological associations seeking to refute the arguments that same-sex marriage undermines the institution of marriage and harms the children raised by such couples.  There is a brief from scholars in the highly specialized field of children’s constitutional rights, arguing that “the real effect of DOMA is to place the excluded class of children in a legal, economic and social underclass.”  There are, that brief estimated, some two million children being raised by homosexual parents.

At the other end of the age spectrum, advocacy organizations for homosexual elders, contending that DOMA “makes it more difficult for married same-sex elders to achieve financial security for themselves and their legal spouses, relative to the heterosexual population.”  The nation’s aged population is growing rapidly, that brief noted, and included among it are same-sex elders who are denied benefits by DOMA.

In general, the challengers have recruited sizable groups of amici supporters: 171 members of the House of Representatives, 40 members of the Senate, 278 business firms and organizations representing them as employers, platoons of scholars and advocacy organizations, and the biggest organized labor combines.

Amici supporting DOMA Section 3

Across two dozen amici briefs backing up the House GOP leaders’ defense of DOMA, the common themes are warnings about what is likely to happen in forty-one states if DOMA falls, predictions of dire influence on religious liberty, support for DOMA as a medium for preserving human culture rather than as a manifestation of homophobia, an insistence that there is no such thing as a fundamental right to same-sex marriage, a persistent claim that the Court’s 1972 dismissal in Baker v. Nelson should control the DOMA litigation, and an offered collection of social science studies on the negative impact on children in gay households.

Here and there among these briefs is a refrain about moral decay in America, but these briefs as a whole are notable for their lack of open condemnation of homosexuality.   The arguments are more tempered, and often dispassionately legal or historical.   There is some, but perhaps surprisingly not more, condemnation of judges who have struck down DOMA, with the briefs engaging them more on law than on moral judgment.

An example of the softer tone is a brief devoted entirely to the question of whether Edith Windsor should have been found to have “standing” to bring her claim for an estate tax refund.  The core of this document, filed by Liberty Counsel, is an argument about whether Ms. Windsor’s Canadian marriage would qualify her for benefits as a New Yorker since that state had not yet allowed same-sex marriage when she sought to qualify as a surviving spouse, which is determined by state law.  The brief contains no negative comments on the Windsor-Spyer marriage, as such.

There are, as expected, numerous briefs in this group arguing that, while redefinition of marriage is an issue of profound importance, there is also a core question here about who does the defining of marriage.   The brief of Concerned Women for America made an energetic plea to keep those definitions in the realm of political, not judicial, choice.

Perhaps the most anxious brief among those defending DOMA is one filed by the Eagle Forum Education and Legal Defense Fund, predicting that if DOMA falls, any law in any state that defines marriage with a husband-wife definition will go down, too, and so will the part of DOMA not directly at issue in this case — Section 2, which gives states permission not to recognize same-sex marriages from other states.  The Court, that document asserted, should not be misled by a “narrow focus” on the fact that Ms. Windsor’s claim is only for a tax refund.

That brief also challenged the Court to make it clear that the Baker v. Nelson decision remains sound law, and to instruct lower courts to continue to follow it.

DOMA gets a stirring defense from ten present Republican members of the Senate, who were in Congress when the law was enacted in 1996.  The aim of their brief is to suggest that the claims that Congress acted out of “animus” toward homosexuals are not justified by the record.  Congress’s only concern, that brief argued, was the protection of state power to determine who could marry and thus could qualify for federal marital benefits.  The statute speaks broadly, those lawmakers’ brief argued, because Congress did not want the government having to litigate hundreds of programs and activities over eligibility.

A group of law professors also provided an analysis of Congress’s intentions in 1996, contending that the primary aim of the law was to avoid dismantling of the “architecture” of national and state governing power over social programs.  No one argued at the time that Congress lacked the authority to have a federal definition of marriage, it argued, suggesting that questioning this concept now is misplaced.

The boldest brief among these amici filings, in terms of legal argument, is one by the Alabama-based organization, the Foundation for Moral Law.  It mounted a direct attack on the idea that the Fifth Amendment Due Process Clause includes a mandate requiring equal protection of the laws.  That, of course, is an idea that is traced to the Supreme Court’s 1954 decision striking down racial segregation in the District of Columbia’s public schools, even as the Court was striking down segregation by local school systems around the country under the equal protection language of the Fourteenth Amendment.  There simply is no foundation, the brief contended, for finding any equality guarantee in the Fifth Amendment — and, at least, there should be none that extended to same-sex couples.

The U.S. Conference of Catholic Bishops has a notably energetic brief arguing against using any higher level of constitutional scrutiny than “rational basis.”  It ran through the requirements that the Court has laid down for applying an elevated level of scrutiny to a claim of discrimination, and it concluded that same-sex marriage does not qualify for a simple reason: there is no right to marry a person of the same sex to support a more rigorous test.   That was clearly an attempt to counter the argument of gay marriage advocates that they were not seeking a new right of their own, but only a right to enter marriage equally.