The oral arguments in the DOMA case U.S. v. Windsor at the Supreme Court brought similar issues of jurisdiction and states vs. federal rights from Monday's hearings on Prop 8 in Hollingsworth v. Perry.
Tuesday's oral arguments seemed to indicate DOMA is poised to be struck down, and the charming plaintiff Edith Windsor, who is suing the government for the $320,000 in estate taxes she had to pay because the federal government did not recognize her legal marriage to her partner of over 40 years, will receive her money back.
1. Can Congress Defend DOMA?
SCOTUS quickly homed in on the issue of whether House Republicans can choose counsel to defend a law when the executive branch will not defend it, similar to the previous day's concerns during Hollingsworth v. Perry about the petitioners defending Prop 8.
Paul Clement, the attorney representing the House Republicans, argued that they had standing to defend DOMA because the Obama administration was not doing so, echoing House Speaker Boehner that, "in our system of government, the administration doesn't get to decide what's constitutional — the Supreme Court does ... Our financing the lawsuit was to make sure the proper forum was used to make sure that we know what's constitutional and what isn't."
2. President Obama's Inconsistent Stance
By statute, the Executive Branch is supposed to defend laws passed by Congress, which the Obama administration was doing until 2011 when President Obama decided it was unconstitutional and stopped defending it, even though the Justice Department has continued to enforce it.
This issue resulted in some heated words with deputy solicitor general Sri Srinivasan and the justices regarding the inconsistent stance of the government that does not support or defend the law, yet continues enforcing it. Chief Justice Roberts expressed his view that if President Obama "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 until the Supreme Court tells us we have no choice."
3. Kagan's Moment
Justice Ruth Bader Ginsburg's skim milk comment has already received a lot of attention, but it was Justice Elena Kagan, who is the only justice to have not served as judge prior to being appointed to the Supreme Court, seemingly ended Clement's case when discussing the rationale behind DOMA.
Clement argued that Congress acted in 1996 to take a national stand against something that "was happening [in the country]...states were considering whether to upset the "traditional view" of marriage...[which forced] Congress to choose between its historic practice of deferring to the states and its historic practice of preferring uniformity."
Kagan responded clearly and definitively, in the gasp-inducing moment of the proceedings, by clearly reading from the official recommendation of various committees' reports on DOMA: "Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality. Is that what happened in 1996?"
Clement struggled to coherently respond to the claim presented by Congress itself that DOMA represents not a law based on factual policy analysis, but as a moral statement on an individual's personal rights, and here is the moment that decided the case.
4. State's Rights and Conservatives Taking a Back Seat
Added to this was the fact that the conservative justices, who argued sufficiently during Hollingsworth v. Perry, were relatively quiet during this case because the central issue at hand is whether or not the federal government or Congress has the right to define marriage. States have the full jurisdiction on how they define marriage, and justices Anthony Kennedy and Antonin Scalia especially are strong states rights proponents.
This effectively indicates that SCOTUS is likely to strike down DOMA but is likely to rule on Prop 8 in a way that focuses the decision to only apply in California.