Paul Weiss' Roberta Kaplan
Diego M. Radzinschi/NLJ
Bancroft's Paul Clement
Photo: Diego M. Radzinschi / NLJ
Just before signing the Defense of Marriage Act into law in 1996, President Bill Clinton said, "I have long opposed governmental recognition of same-gender marriages and this legislation is consistent with that position."
Earlier this month, Clinton said he had changed his mind and now thinks Section 3 of the law defining marriage as between a man and a woman is unconstitutional. "We understand that, while our laws may at times lag behind our best natures, in the end they catch up to our core values," he wrote in a Washington Post op-ed.
As the U.S. Supreme Court takes up the issue in the case of U.S. v. Windsor March 27, it is faced with dozens of briefs from groups of former military officials, intelligence officers and even a bankruptcy judge among others urging it to strike down the law. The question is whether the justices — and especially Anthony Kennedy — will agree with Clinton that the time has come to change course.
"It is unfair to have two classes of marriage and to make same-sex couples second-class citizens," said Roberta Kaplan of Paul, Weiss, Rifkind, Wharton & Garrison, who will argue on behalf of Edith Windsor, who had to pay $363,000 in estate taxes when her spouse, Thea Spyer, died — a tax that opposite-sex married couples don't have to pay.
But veteran advocate Paul Clement of Bancroft, who will defend the law before the court, says Congress was entitled to define marriage as it chose to for the purpose of allocating federal benefits and programs. "It does so not by singling out any category of relationships for specific exclusion, but rather by clarifying what marriage means for purposes of federal law," he said. Clement represents the House Republican-led Bipartisan Legal Advisory Group, which stepped in after the Obama administration announced in 2011 that it would not defend Section 3.
On issues like the death penalty, the court often takes a headcount of states to see which way the country is trending. On that score, with only nine states and the District of Columbia legalizing same-sex marriage, the outlook may be bleak for those who want to see same-sex marriage given constitutional protection.
But Kaplan plans to turn that into an advantage, by focusing on those nine states and arguing that what she is asking the court to do is "not a big deal" — often a winning strategy before a court that likes to take baby steps. She will argue that DOMA should be overturned because of the adverse effect it has on the gay couples who are legally married in those states. Briefs have identified more than 1,100 statutes where being married in the eyes of the federal government makes a difference — even for those same-sex couples who were legally married.
Opponents of DOMA are also hoping that the broad range of support, as reflected in the array of amicus briefs, will persuade the court that erasing DOMA will even the federal playing field without disrupting society, while allowing states to keep or change their marriage laws as they choose.
Take, for example, the brief on behalf of former military officials written by veteran advocate Carter Phillips of Sidley Austin. He argues that treating gay couples equally is an important component of "family readiness," which in turn boosts military readiness. "DOMA threatens the core of the military's mission and culture," the brief asserts — a remarkable statement, given the military's general hostility to gays in the not-too-distant past.
"Hopefully, what the amici demonstrate is that the nation has become quite comfortable with gay marriage and with the notion that fundamental fairness dictates not arbitrarily treating those relationships as somehow less deserving in the eyes of the law," Phillips said.
SHOTGUN WEDDINGS
For his part, Clement is advancing another argument that at least one commentator has described as the "shotgun wedding" justification for reserving the institution of marriage for opposite-sex couples only. Clement's brief notes "the undeniable and distinct tendency of opposite-sex relationships to produce unplanned and unintended pregnancies." That tendency is not a problem for gay couples, he says, because for them, "substantial advance planning is required" to produce a child.
That difference, he continues, makes it rational for government to make marriage unique and attractive for male-female couples only, as a way of encouraging them to raise unplanned children within a marriage. Having unintended children outside of marriage "poses a burden to society," Clement wrote. Patt Morrison, a columnist for the Los Angeles Times, summed up the argument this way: "Shotgun weddings are preferable to gay marriages."
Though this argument is offered as a "rational basis" rationale, some supporters of DOMA view it as a justification that will hold up even if the court adopts a higher level of scrutiny. "It gets us over the heightened-scrutiny hump," said John Eastman of Chapman University School of Law, a key member of the pro-DOMA legal team.
DOMA opponents think they can convince the court to overturn the law under any level of scrutiny, high or low. The difference between same- and opposite-sex couples in terms of their tendency to produce unplanned children, Kaplan's brief states, is a thin reed on which to justify DOMA. "This one difference cannot explain the federal government's decision to impose a sweeping disability on married gay couples that excludes them from countless federal programs, and only harms their children."
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