Please see Jason Hines' recap/analysis of the Proposition 8 oral arguments.

By Jason Hines –

There were several things that conspired to make the oral arguments in the Supreme Court today over the Defense of Marriage Act (DOMA) seem a lot less interesting than the Prop 8 arguments that took place yesterday. First, it was the second day of hearings pertaining to the issue of gay marriage, and the second day is never as interesting as the first. Second, there was a huge and overbearingly technical argument about the standing of the Congress to defend laws that it passed. This argument took up a good section of the oral argument and it can be difficult for a layperson to follow the train of the argument. Despite these issues, I think there are at least a few interesting points that can be gleaned from took place today. As with yesterday this won't be a full recap of the arguments, so you should go toMother Jones, or SCOTUSblog to deepen your understanding.

First, Paul Clement, lawyer for the House of Representative's Bipartisan Legal Advisory Group, did as masterful a job as possible presenting the case for DOMA. He has a significant standing problem. The House is defending the law here because the President's administration actually supports the idea that this section of DOMA is unconstitutional. It is just as possible that the Court could punt this case for standing reasons like everyone thinks they will do with the Prop 8 case. It is incredibly difficult to determine exactly how the House of Representatives is harmed by having its law declared unconstitutional. Clement's posturing of the case was novel and well done in my opinion. He framed the case as this question, "[D]oes the federal government have the same flexibility [as states do to define marriage as it sees fit], or must the federal government simply borrow the terms of state law?" Although I don't agree with him (for reasons I will get into later), he was certainly compelling in arguing that the government sought uniformity in how it was going to parcel out benefits and decided to hold in place the traditional definition of marriage in light of a society that seemed on the brink of fast-paced change in 1996 when they enacted DOMA. (As an aside, they were wrong about that fast-paced change. There was actual a reversion in the gay marriage rights movement in 2004 and 2008, and the fast pace has actually been the last 5 years.)

There were some things that Clement has a tough time handling despite his strong argument. In one of the most interesting moments of the hearing, Justice Kagan read one of the rationales given in the House Report on the passage of DOMA. "Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality." This quote produced an audible gasp from the people assembled in the courtroom. Clement, to his credit, gave the only response he could give – that this reason was amongst the reasons cited, but it was not a reason that they were using in support of their arguments today. However, both attorneys in opposition came back to this point to underscore the possibility of explicit discrimination as a rationale for this definition. The other problem Clement had was in attempting to argue that the federal benefits of marriage did not have an effect on the conception of marriage at the state level. Justice Ginsburg described the difference the government currently promotes as full marriage on one hand and "skim milk" marriage on the other. On more than one occasion Justice Kennedy referred to the 1100 statutes that the federal definition of marriage in DOMA effects, and how those statutes touch every area of life.

Although I agree with their arguments, I did not feel that Solicitor General Verrilli, Jr. and Ms. Roberta Kaplan, who represented the government and the original petitioner in this case respectively, did as good a job in presenting their case to the justices. They both attempted to skirt around the federalism question that Clement framed during his time before the justices. Many justices framed the question this way – Would the government violate the issues of federalism (separation of powers between the federal and state levels of government) if it redefined marriage in DOMA to include same sex marriage or if they didn't call it marriage at all. Verrilli eventually said it was not a federalism issue, and Ms. Kaplan never adequately answered the question.

For the record, I think the answer to that question is no, with the addendum that the question is not germane here because I would argue that the government has to conform to each state's definition of marriage at the very least. (Though I must admit, I think they wanted to avoid that argument because they were shooting for the possibility of overturning gay marriages nationwide.) Though Ms. Kaplan focused on it some, I think both lawyers did not stress enough what I think is the key systemic issue in this case – marriage only exists because states say so. In other words, the federal government is hampered in its ability to define marriage because the federal government doesn't do marriage. Therefore when it defines marriage, it is defining a state institution and not a federal one. So states that have already allowed gay marriage should be able to tell the federal government, "These are the people who we as the state have decided should be allowed to have these benefits." If the federal government does not like that, then they can get out of the marriage business all together. But I don't think it is allowed to proactively interfere in something it did not create, and then tell the states who should and should not be under that definition. This contradiction is what creates the equal protection problem. Justice Ginsburg is right to point out that it creates two classes of marriage in areas that are seminal to the existence of married couples. If we believe in equality under the law, I don't think we can say to a legally married couple that they are not able to receive federal benefits because the government does not consider them married when the government does not actually marry anyone.

As I said on the Spectrum podcast last week, I think that the Court will overturn DOMA and will not overturn the decision of the 9th Cir. in the Prop 8 case. But one of the more interesting aspects of the gay marriage debate that the arguments of the last two days have highlighted is how different the discussion of marriage is from the religious to the legal realm. As someone who is a student of both disciplines, it is a difference that I straddle and attempt to expose whenever possible. Within the religious bubble, the discussion revolves around proof texts and God's design for humanity and what is "natural" and what is not. While those discussions are occasionally useful and worthwhile, they have absolutely no bearing on marriage as a civil right. Religion was not mentioned one time over the course of the two days and neither should it have been. The issues of the extension of civil marriage are not issues of theology or spirituality (and they still won't be if same-sex marriage became legal nationwide tomorrow). The issues are foundational issues of what make America what it is – equality, fairness, and the lack of discrimination. I think these are principles that we can all support, regardless of our religious beliefs.

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