The undercurrent of excitement that energized the courtroom audience for the first day of argument in the same-sex marriage cases did not wane on Wednesday, as the justices took up the challenge to the federal Defense of Marriage Act.
Once again, the bar and public sections were packed and the press overflow filled makeshift rows behind the courtroom’s pillars. The audience was ready; the lawyers were ready and the justices were ready. The only thing not ready was the courtroom’s sound system, which failed halfway through the arguments on the merits in U.S. v. Windsor. Never have so many strained so hard to hear so little.
Although House GOP leaders hired Paul Clement of Bancroft to defend DOMA after the Obama Administration refused, a quick scan of the courtroom found nary a House Republican leader in the audience for the most important day in their defense. The House, of course, is on its spring break, but House Democratic Leader Nancy Pelosi was there along with her Democratic colleague, Jerrold Nadler of New York.
Democratic senators Tammy Baldwin of Wisconsin and Mazie Hirono of Hawaii also were spotted in the audience. Sen. John Cornyn of Texas represented the Republican side of that chamber with a choice seat in the justices’ guest section. Also taking their seats in that section for the historic arguments were Mary Kennedy, wife of Justice Anthony Kennedy, and Joanna Breyer, wife of Justice Stephen Breyer.
Two judges showed up: U.S. District Judge Thomas Hogan, now serving temporarily as head of the Administrative Office of the U.S. Courts, and U.S. Bankruptcy Judge John Olson, who had described in an amicus brief the discriminatory effect of DOMA on his own same-sex marriage.
Harvard Law’s Vicki Jackson, making her first argument in the Supreme Court, gave a star performance. Jackson was appointed by the Court to argue against jurisdiction and standing of the United States and the House of Representatives Bipartisan Legal Advisory Committee. She appeared to have anticipated every question and responded with a thorough knowledge of the court’s precedents in this difficult area.
"There is no justiciable case before this Court," she firmly told the justices. "Petitioner, the United States, does not ask this Court to redress the injuries it asserts. The House of Representatives’ Bipartisan Legal Advisory Group, the BLAG, which does seek redress in the form of reversal, asserts no judicially cognizable injury.
"While it is natural to want to reach the merits of such a significant issue, as in Raines v. Byrd, this natural urge must be put aside because, however important the constitutional question, Article III prevents its decision here and requires this Court to await another case, another day, to decide the question."
The justices seemed to be struggling with the roles of the United States and BLAG in the litigation, stumbling blocks to their reaching the merits of whether Section 3 violates the equal protection guarantee in the Fifth Amendment.
Jackson received support at the counsel’s table from veteran high court advocate Patricia Millett, head of the Supreme Court practice at Akin Gump Strauss Hauer & Feld.
Perhaps the most dramatic moment in the arguments came when Justice Elena Kagan challenged Clement’s argument on why Congress enacted DOMA—its concern for uniformity of federal law when faced with the prospect in 1996 of some states approving same-sex marriage.
Kagan said: "Mr. Clement, for the most part and historically, the only uniformity that the Federal Government has pursued is that it’s uniformly recognized the marriages that are recognized by the State. So, this was a real difference in the uniformity that the Federal Government was pursuing. And it suggests that maybe something—maybe Congress had something different in mind than uniformity."
Because Congress targeted a group "that is not everybody’s favorite group in the world," she said, that raises the question whether Congress’ judgment was infected by dislike, fear or animus.
Not satisfied with Clement’s answer, Kagan then quoted from the House Report on the legislation that it passed as DOMA: "Congress decided to reflect and honor its collective moral judgment and to express moral disapproval of homosexuality."
Is that what happened in 1996, she asked him. Clement responded, "Does the House Report say that? Of course, the House Report says that. And if that’s enough to invalidate the statute, then you should invalidate the statute. But that has never been your approach, especially under rational basis or even rational basis-plus, if that is what you are suggesting."
Justice Ruth Bader Ginsburg drew what seemed to be the only laughter when she described the effects of DOMA as treating opposite-sex marriages as "full marriage" and legal same-sex marriages as "skim milk marriage."
Keeping a close eye on the DOMA arguments for possible impact on his case against California’s ban on same-sex marriage was Theodore Olson of Gibson, Dunn & Crutcher, who the day before ran the gauntlet of the justices’ wide-ranging questions.
Marcia Coyle can be contacted at email@example.com.