We asked several lawyers for a fast analysis of Wednesday’s Supreme Court fight over the constitutionality of Section 3 of the federal Defense of Marriage Act of 1996, which defines marriage as between a man and woman for all federal purposes. Their reactions to the arguments follow:
Judith Schaeffer, vice president, Center for Constitutional Accountability (CAC):
"A majority of justices today appeared to regard DOMA for what it is: a pervasive program of discrimination that changes 1100 laws and touches every aspect of life."
Elizabeth Wydra, CAC chief counsel:
"To great applause, at least in the lawyers lounge, Justice Kagan pushed back again at the argument that DOMA is a benign Federal law by citing blatantly discriminatory comments in the U.S. House reports."
David Gans, CAC civil rights director:
"Like yesterday, some of the justices seemed reluctant to decide this case, but if they address the merits we expect the court to strike down DOMA."
Paul Smith, Jenner & Block chair of the Supreme Court and appellate practice, who authored an amicus brief supporting Edith Windsor:
"What a great day of extraordinary arguments. The Court found the jurisdictional arguments surprisingly difficult. But in the end I think the Court will recognize that the Executive Branch needs to have the option to stop defending a law but still seek an authoritative ruling by continuing to enforce the law. On the merits there seemed to be at least five votes to affirm the invalidation of DOMA perhaps with a combination of federalism and equal protection rationales."
David Cruz, University of Southern California Gould School of Law:
"The Justices expressed great skepticism and little to no support for the notion that the House committee (the Bipartisan Legal Advisory Group) has standing to litigate this case. There was also significant doubt about whether the U.S. government could appeal since the President and Attorney General agree with Edie Windsor that DOMA is unconstitutional. We could see a ruling dismissing the case, perhaps wiping out the Second Circuit decision, and leaving Edie Windsor her district court win and entitlement to a refund of her inheritance tax. If a majority of the court reach the merits, Justice Kennedy’s expressions of concern about the sweeping effect of DOMA and the federal intrusion into state marriage policy he saw it representing might presage a holding that DOMA is unconstitutional."
Kate Kendell, National Center for Lesbian Rights executive director:
"The so-called Defense of Marriage Act (DOMA) is a mean-spirited law that serves only to harm same-sex couples and their children while helping no one. We are confident the Supreme Court will agree that depriving legally married same-sex couples of the many federal rights and benefits offered to spouses does nothing to strengthen anyone else’s marriage. There is no legitimate reason to treat married same-sex couples differently than other couples when it comes to taxes, Social Security, and immigration. As the Solicitor General ably argued today, DOMA is the rare kind of law that is so offensive to the Constitution’s basic promise of equality that the government cannot defend it."