The lawyer for the Republican House majority insisted yesterday 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.

Former U.S. solicitor general Paul Clement, a partner at Bancroft, and Roberta Kaplan, a partner at Paul, Weiss, Rifkind, Wharton & Garrison await yesterday’s arguments at the U.S. Court of Appeals for the Second Circuit.

NYLJ/Rick Kopstein

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

But 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.

Kaplan and Clement, who was hired to defend the law by a 3-2 majority of the Bipartisan Legal Advisory Group led by House Majority Leader John Boehner, R-Ohio, 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 Judge Barbara Jones (See Profile) 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” (NYLJ, June 7).

Yesterday, Acting Assistant Attorney General Stuart Delery was in an unusual procedural posture as a result of a decision by President Barack Obama and Attorney General Eric Holder in February 2011 to stop defending the law on the grounds that §3 should be subject to, and could not survive, heightened scrutiny.

The purpose of heightened scrutiny, said Delery, was in “smoking out improper rationales” and making sure that the reasons behind making a classification are appropriate. One of several factors considered in heightened scrutiny analysis is whether a disfavored group has historically lacked political power.

Jacobs’ first question for Delery was to explain the government’s reason for being there, given that it backed Windsor before Jones and is opposed to DOMA.

“In my day, when you won, you didn’t appeal,” Jacobs said.

Delery said the government is nominally a defendant, as it was the United States that was ordered by Jones to recognize Windsor as eligible for the estate tax exemption—a decision stayed pending appeal.

Jacobs said the government’s argument that homosexuals lack political power was less than credible given that 145 representatives in Congress, led by House Minority Leader Nancy Pelosi, D-Calif., filed a pro-Windsor amicus brief and the president and the attorney general won’t defend an act of Congress.

“Your [Delery's] presence here is like an argument against your argument,” Jacobs said.

But Delery said the U.S. Supreme Court has never viewed the political power factor as “an all or nothing” issue.

“It’s still the case that the rights of gay and lesbian people usually lose when they are put up to a vote,” Delery said, adding it was “crystal clear” that §3 was “motivated in significant part by disapproval of gay and lesbian people.”

Straub wanted to know, “Did you [the government] tell that to Congress in 1996?”

The Department of Justice did not, Delery said, because, at the time, it believed the classification would survive judicial review.

“And thereafter argued the constitutionality of the statute,” Straub said. “What is it that changed your view?”

Delery said one reason was that the initial defense of the law was based on rational basis review, but another was that “this is a decision that has been made by the attorney general and the president.”

He told the court that “sexual orientation is a fundamental aspect of a person’s identity,” and there is an “overwhelming consensus” in science and medicine that sexual orientation is “deeply ingrained.”

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.

Jacobs asked whether Congress could have made the distinction with the rational purpose of simply saving money, and Kaplan answered by quoting 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 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 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) (NYLJ, Nov. 20, 2009).

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, 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 (NYLJ, Sept. 13).