The lawyer for the Republican House majority insisted last week that Congress acted rationally when it defined marriage exclusively as between one man and one woman.

The attorney, former Solicitor General Paul Clement, told the U.S. Court of Appeals for the Second Circuit that denying same-sex couples federal benefits accorded heterosexual married couples was intended to promote uniformity at the federal level while leaving the states to decide for themselves the definition of marriage.

“I don’t think anyone on either side minimizes the importance of what’s at stake here,” said Clement, of the Bancroft law firm, as he urged Judges Dennis Jacobs, Chester Straub and Christopher Droney to declare constitutional the1996 Defense of Marriage Act (DOMA).

But attorney Roberta Kaplan, of Paul, Weiss, Rifkind, Wharton & Garrison, countered that there can be no rational basis for the act’s discrimination against her client, Edie Windsor, who was forced to pay taxes on the estate of her spouse, Thea Spyer, from which she would have been exempt had the couple been heterosexual.

“The single question is whether Section 3 of DOMA is unconstitutional as it applies to an 83-year-old lesbian widow who had to pay $353,000 in estate taxes and wants her money back,” Kaplan said.

The case is being closely watched by the Connecticut bar. Not only did a federal judge in Connecticut also strike down Section 3 of DOMA this summer, but several Connecticut groups, including the Connecticut Bar Association, as well as the state Attorney General’s Office, have filed amicus briefs in the New York case.

During the Sept. 27 hearing, Kaplan and Clement fielded questions from the judges on the degree of scrutiny the court should apply to DOMA, with Clement arguing rational basis scrutiny and Kaplan arguing for a heightened form of scrutiny with the proviso that the law should be overturned under either approach.

In June, Southern District of New York federal Judge Barbara Jones applied rational basis scrutiny in finding the law violated the equal protection clause, saying it was “unclear how DOMA advances the interest of preserving marriage.” Jones said the federal government was intruding on an area traditionally left to the states and she could see no “logical relationship” between the law and the “legitimate governmental goals” of “promoting family values and responsible parenting.”

States’ Rights

During her argument, Kaplan attacked the law as an unprecedented change in legal status on an issue that traditionally has been left to the states.

Second Circuit Judge Jacobs asked whether Congress could have made the distinction with the rational purpose of simply saving money, and Kaplan answered by quoting Judge Jones and saying that saving money is not by itself sufficient justification. That is “especially true when the classification is drawn against a historically disfavored group,” she said.

There was a “disconnect” between the classification and the objectives of Congress in passing the law, Kaplan said.

She also emphasized that the goal of Congress in creating “uniformity” through DOMA was a chimera because uniformity has “always existed” in that the states, and not the federal government, defined marriage.

This argument drew out Judge Straub, who asked whether the logical extension of Kaplan’s argument was that the 30 states that have passed laws defining marriage as solely between one man and one woman “that, they, too are unconstitutional.”

Kaplan answered in the negative.

“What is the difference?” Straub wanted to know.

Kaplan’s answer was that the difference is the connection between what the states can do and what the federal government does.

Straub didn’t accept the argument. “So, arguably, an affirmance here, would probably bring an end to the discussion, that is to say those 30 states would be peeled off one after the other,” he said.

Clement, who was hired to defend the law by the Bipartisan Legal Advisory Group led by House Majority Leader John Boehner after the Obama administration refused to do so, argued that Windsor lacked standing and that the circuit should certify questions to the New York Court of Appeals. New York’s high court, he said, had not resolved the issue of whether foreign same-sex marriages—Windsor and Spyer were married in Canada in 2007—were valid under New York law in 2009, when Spyer died.

In fact, he said, the New York Court of Appeals expressly reserved the question in 2009 in Godfrey v. Spano, 920 N.E.2d 328 (N.Y. 2009) Clement said that Congress was well within its authority to condition federal benefits on a “traditional” definition of marriage and it was prompted to do so in 1996 because Hawaii was on the brink of recognizing same-sex marriages. States, he said, could “rationally decide” to follow Hawaii’s lead or “rationally decide” not to.

“This is an issue that can be left to the democratic process,” Clement said.

In making their decision, Judges Jacobs, Straub and Droney have the benefit of more than 20 amicus briefs on the issue in Windsor v. United States, 12-2335, which is also percolating at the U.S. Supreme Court and may be heard this term.•