DOMA Goes to the Supreme Court, and Its Days May Be Numbered

Today, the Supreme Court listened to arguments on the Defense of Marriage Act, the federal law which defines marriage as being between one man and one woman. The buildup to this moment has been slow and intense – Obama first declared part of DOMA unconstitutional (Section 3, the part which explicitly refuses to recognize same-sex marriages as legal) back in 2011, and since then others, like Bill Clinton, who actually signed the act into law in 1996, have come to agree. Many Democrats in Congress agree. Unfortunately, none of those people are tasked with the job of actually what is and isn’t consitutional; that’s what the Supreme Court does, which is why the fact that the Court is looking at it this week is such a big deal.

When the ruling on Prop 8 comes, it will talk about whether it’s okay for an individual state to ban same-sex marriage, and may have national implications or may just be restricted to California. In contrast, the ruling on DOMA will decide whether the federal government of the United State is legally obligated to recognize same-sex marriages if they were performed in a state which allows them. Right now, even legally married same-sex couples can’t file tax returns together and are listed as “single” on census forms. Even though DADT has been repealed, servicemembers’ spouses can’t receive full benefits because they aren’t federally recognized as being married; the same thing happens with spouses of federal government employees. If DOMA is repealed, states won’t be forced to legalize or recognize same-sex marriages, but the government will recognize those marriages performed in states where it is legal.

edie windsor, plaintiff in the DOMA lawsuit United States v. Windsor, pictured with her wife thea spyer

edie windsor, plaintiff in the DOMA lawsuit United States v. Windsor, pictured with her wife thea spyer

While the general impression of many after the arguments on Prop 8 yesterday was that the future of Prop 8 couldn’t be determined one way or another, there seemed to be something more of a consensus about the proceedings today on DOMA. As Reuters puts it, “a majority of Supreme Court justices on Wednesday indicated they could be inclined to strike down a law that denies federal benefits to legally married same-sex couples.”

Of course, since the court isn’t going to give us a ruling until June, everything in the media today is just pure speculation. It’s based on justice’s behavior in the courtroom, and how their doubt or skepticism about certain arguments is indicated by their questions to the legal team. Some justices asked questions which might be viewed as betraying their opinion on the issue, like when Justice Sotomayor asked “What gives the federal government the right to be concerned at all about what the definition of marriage is?” In addition to Sotomayor, Justices Kagan, Ginsburg, and Breyer are described as having “raised concerns” about the constitutionality of DOMA. Justice Kennedy, who usually rules conservatively, has been thought of as the wild card on this issue, since he’s voted supportively on gay issues a few times in the past. Today, Kennedy did seem skeptical of DOMA’s constitutionality, although his reservations may have been based more in his views on states’ rights than marriage equality:

Kennedy repeatedly said the states, not the federal government, have the primary role in deciding who is married. The question is “whether the federal government has the authority to regulate marriage,” he said.

The question of whether the justices consider DOMA an issue of equal rights for individuals or of states’ rights is important; if the final ruling strikes down DOMA, but treats the issue as a violation of states’ rights, then its impact could simply be that the federal government doesn’t have the right to define marriage, whereas for marriage equality supporters the ideal would be for the ruling on DOMA to say that it’s unconstitutional to deny all couples equal access to the institution of marriage. Justices Kagan, Sotomayor, Ginsburg and Breyer seemed to tend more towards this line of reasoning.

The discussion in the courtroom touched on arguments that have been brought up around DOMA before – Paul Clement, the lawyer defending DOMA, argued that the point isn’t discrimination so much as “a uniform definition of marriage.” Justices such as Sotomayor and Kagan pointed out that DOMA actually makes marriage less uniform, since “New York’s married couples [who may be gay] are different than Nebraska’s.” Kagan also pointed out that before DOMA, the understanding that “persons who are married in the state are married under federal law,” and in that respect also the current system seems less than perfectly uniform. Some more conservative justices, like Scalia and Roberts, expressed an opinion that (especially with the recent landslide of political support) gays and lesbians aren’t actually discriminated against, which is no real surprise given their past views.

One of the less expected topics that came up during arguments was the peculiar legal situation surrounding DOMA currently. As things stand, DOMA is part of the federal law of the United States, but the current president has declared part of it unconstitutional and refused to defend it in court (although at the same time, it has not yet been successfully repealed). Despite the president’s feelings on the matter, another part of the government (namely, John Boehner and the House of Representatives) feel that it’s inappropriate to stop defending the law, and so have hired a lawyer (Paul Clement, the lawyer in the courtoom today) in defiance of the president and are continuing to defend the law’s existence through him. In this sense, the Supreme Court is acting a little like a mediating body between two divorcing partners who are still living in the same house and sharing resources, but fundamentally disagree on everything. Given that this is a country we’re talking about, it’s an admittedly unusual situation. The conservative justices raised some eyebrows at this plan, with Justice Roberts intimating that Obama’s actions meant he lacked “the courage of his convictions.”

There are nine seats on the Supreme Court bench, and so five justices would be required to agree to strike down DOMA in order for a pro-equality ruling. It seems – again, based purely on speculation, as there’s no way of knowing for sure – that Justices Sotomayor, Kagan, Ginsburg, Breyer and Kennedy are unconvinced of DOMA’s constitutionality and may want to strike it down. That’s five justices, which would be enough for an anti-DOMA ruling. However, even if that were to pass, DOMA could still be struck down as a states’ rights violation rather than an equal access violation, which would be much less meaningful in terms of actually achieving marriage equality and not just removing DOMA. To listen to and/or read the arguments yourself and draw your own conclusions about what the justices may be thinking, you can find complete audio and transcript of the arguments at the NYT.

Rulings on both Prop 8 and DOMA are expected in late June; neither case is a slam dunk, and both cases have a variety of different ways they could play out even if marriage equality “wins,” some of which are much less beneficial to gay families than others. Although there have been some encouraging signs from within the court both today and yesterday – Edie Windsor and her lawyer left the courthouse today saying it “went well” and that Edie “felt respected” – we’re not going to know for sure what the outcome is for these cases for another few months. We can spend the time until then doing the same unflagging activism and work for change that got us to this moment, both for the cause of marriage equality and for the other issues, like job discrimination, housing discrimination, suicide, access to medical care, homelessness, and violence, which continue to threaten the safety and security of the queer community. Things are changing, but only because we’re making them, and this is no time to stop.

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Originally from Boston, MA, Rachel now lives in the Midwest. Topics dear to her heart include bisexuality, The X-Files and tacos. Her favorite Ciara video is probably "Ride," but if you're only going to watch one, she recommends "Like A Boy." You can follow her on twitter and instagram.

Rachel has written 1142 articles for us.


  1. I admit that my Edie is totally closing in on my Betty White. Classy, classy lady who regardless of where this ends up will always be a hero in my eyes.

    • Oh geeze, my phone added the “my” at the beginning of Edie. I am so not a creepy McCreepster…eeesh.

  2. I like it when people think that gays and lesbians totally aren’t discriminated against. Like, what the fuck kind of alternative reality are these people living in? I read something earlier today claiming that gays and lesbians are a “powerful group” so we don’t need protection? Alright, let’s tell that to all of the people being legally fired or kicked out of their houses for being gay. Some power we have there.

  3. I get so ragingly angry whenever I hear the audio of Roberts concern trolling about how since the gays can bring this lawsuit and have some politicians support them they must obviously be a politically powerful group. If we were such a politically powerful group we wouldn’t have to be suing the government to get them to stop fucking us over.

    • Oh yeah evidently in Roberts’ world, politicians are “falling all over themselves” to support us. So– we run the world now. Ok, no big surprise there, we do historically and now have some power– but almost always from the closet. And definitely not while proudly lawfully wedded to our partners. I mean, criminal sodomy laws was upheld by this same Court as legal less than 20 years ago because, according to the Court, there were “ancient roots” prohibiting homosexuality and it was a crime worse than rape.

    • I was angered at his questioning because it was clear he has already determined that the gay agenda is led by political power (lobbies etc.), but I was also very disappointed by the lawyer’s response. She should have said that the sea change comes from individuals coming out one by one and neighbors/friends/family realizing that gays and lesbians are just regular people. The lawyer should have stressed the individuality of the “sea change”. And she didn’t. And I think it was a big miss.

      • I was in the courtroom (38 hour campout!) and was telepathically trying to tell her the exact same thing! But now I think the ones who want to believe our political power is too great for the legal level of scrutiny we want applied (heightened) would probably have just said (maybe not during arguments but privately) that if we felt it was safe to come out, then we didn’t really fear discrimination.

  4. These rulings could make for a VERY happy pride or a very political pride. Personally, I don’t see how they can argue in favor of DOMA, everything the defense brought up is illogical. Prop 8 is done for. Hope all those churches liked wasting their parishioners money in support of prop 8, about 50 million of it to be exact.

  5. ” In this sense, the Supreme Court is acting a little like a mediating body between two divorcing partners who are still living in the same house and sharing resources, but fundamentally disagree on everything. Given that this is a country we’re talking about, it’s an admittedly unusual situation.”

    sigh, this place.

    thank you for explaining all the things, rachel!

  6. the fuckers are politicians, and to at least appear as if they’re in this country/century/relevant they have to get rid of DOMA. so it’s done.

  7. I think we are about to enter a maelstrom of legal chaos. DOMA appears doomed but not on equal protection groups, on states’ rights grounds, which is really dicey. We really need to be treated legally like other oppressed groups, with “heightened scrutiny.” And states’ rights arguments in general are a little scary to me– this is the same argument that tore apart Medicaid expansion as part of healthcare reform and has effectively denied healthcare to the people who likely need it the most, the most low-income among us. Plus, it looks like only Section 3 of DOMA is going to go down, which concerns the federal government’s treatment of same-sex marriages but you know at some point very soon we will start seeing challenges to “mini-DOMAs” which were allowed by DOMA, that is, the state laws defining marriage as “one man-one woman.” SCOTUS does not appear ready or wanting to extend marriage equality to the 40 states that don’t have it through these particular scenarios before the Court and it doesn’t have to– but that doesn’t mean there won’t be people knocking at its door soon arguing for exactly that. Or what we will see is people flocking to the states that allow same-sex marriage because really, 1,300 rights is a force not to be fucked with. The rights that states gave same-sex married couples were important but federal rights are much larger in number and in importance (I think). So once Section 3 of DOMA is dead and the federal government stops discriminating against the states with equality, there are very compelling reasons to move. I say this as someone who now lives in a very conservative state but was actually same-sex married and subsequently same-sex divorced in Massachusetts so I can see it from both sides– and right now I want to stay here in my insanely conservative home that I also insanely love but honestly that might change if I decided I wanted to partner with someone again — haha or maybe partner and split up with someone– divorce is much easier when you are legally married!! When people talk about the rights of marriage– divorce is one of them and one that is very frequently used! It was much easier to battle it out with my ex-wife in family court then to have to try to wrangle our way splitting up property in just a regular court that would have seen us as just 2 people who happened to have a mortgage and condo together. Family court was very fair. /PSA pro-divorce.

    • It’s possible that the Court could rule to overturn DOMA on both grounds- if three justices overturn it for federalism and two for equal protection or vice versa. The Court will not rule to allow it for all states because that is not part of the question before it- only the issue of whether the federal government can ignore a state-level marriage through Section 3- there hasn’t been a case to challenge Section 2. Even the equal protection arguments made yesterday were not that gay couples should be allowed to marry because straight people do but because but that the federal government itself was discriminating by acknowledging the state level marriages of straight people and not gay people. Litigation advocacy like this is slow but it works best when there’s a clear limited question in front of the Court.

      • Yeah but you know those mini-DOMA fights are next…. it’s not before the Court now, they are going to punt most likely by not finding an equal protection violation in the Prop 8 case… but it won’t be long. This litigation has actually been really fast, comparatively — something that unfortunately Sotomayor somehow thinks is a bad thing, that it should be stretched out over decades like the anti-miscegenation battles were.

  8. Speaking of American legislation rooted in homophobic attitudes, will AS be publishing any articles about Kansas HB 2183 – it’s calling for a quarantine on people with HIV or AIDS, and it’s already passed the Kansas Senate. :/

  9. What is the benefit of expanding access to an exclusionary rights-granting institution when doing so justifies the neoliberal privatization of those rights? Simply put, why fight for some people to get access to rights and support a system that excludes the 52% of the U.S. population that’s unmarried. We should be pushing for rights for all, not strengthening an excuse to only extend rights to some.

    If health insurance is a basic right, then shouldn’t there be universal healthcare, not healthcare for those with an insured spouse? Marriage equality justifies marriage as a prerequisite for health insurance, letting the government off the hook.

    The U.S. purports to open their arms to the world’s “huddled masses yearning to breathe free”. Why should I have to marry someone with an eagle-crested U.S. passport for that opportunity? I love my queer kin more fiercely than I could love any partner. Should I have to leave the country because I haven’t signed up with the government to let them know I’m f*cking only one person?

    Tax us progressively, giving back to those in need and taking from those with excess, not by regressively giving back to the disproportionately privileged minority of the U.S. who happen to have entered a monogamous sexual relationship of which you approve.

    Why should my access to rights be dependent on my romantic success? Give ALL individuals rights, not just those whose lifestyles strike your fancy!

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