March 25, 2013 -- Two potentially transformative cases regarding gay marriage will be argued at the Supreme Court this week. Justices have set aside two days to hear arguments and they will release audio arguments that day. Both cases will be decided by the end of June.
Click here to read more about the challenge to California's Proposition 8.
In addition to ruling on the constitutionality of Prop 8, which bans gay marriage, the Supreme Court will also hear a challenge to a federal law, the Defense of Marriage Act (DOMA) that defines marriage as between one man and a woman. The law denies federal benefits to same-sex couples who are legally married in their states. Unlike the Prop 8 case, the DOMA challenge does not address whether there is a fundamental right under the Constitution to gay marriage.
The case was brought by Edie Windsor, an 83-year-old woman from New York who married Thea Clara Spyer in 2007 after some 40 years together as a couple. When Spyer died in 2009, Windsor was denied -- under DOMA -- an exemption on federal estate taxes that she had paid on her spouse's estate.
In February 2011, the Obama administration announced that while it would continue to enforce DOMA, it would no longer defend the law.
Before the justices reach the merits in this case they will have to address two threshold issues. The first is whether the court even has the jurisdiction to hear the case given that the U.S. government agrees with Windsor that DOMA is unconstitutional.
The second question involves the "standing" of the Bipartisan Legal Advisory Group (BLAG), a group led by the House Republicans that stepped in to defend DOMA when the Obama administration refused to do so. Paul D. Clement is the lead lawyer for BLAG.
Because both BLAG and the government believe the justices should reach the merits in the case, the Court appointed Vicki Jackson, a Harvard Law professor, to argue the threshold questions.
Only when the court satisfies itself that the case is properly in front of it , will it proceed to the merits of the case.
DOMA was passed in 1996 with wide majorities in both the House and the Senate. But since then, public opinion on gay marriage has changed radically. Today, the latest polls show a majority of Americans support gay marriage.
Similar to the arguments of supporters of Prop 8, Clement argues that in passing DOMA, Congress had a good reason to support traditional marriage. He targets the "tendency" of opposite-sex relationships to produce "unintended and unplanned offspring."
Clement says that Congress was acting rationally when it passed DOMA: "Government from time immemorial has had an interest in having such unintended and unplanned offspring raised in a stable structure that improves their chances of success in life and avoids having them become a burden on society."
In his briefs Clement points out that the federal government is not invalidating any state same-sex marriage laws, but instead is ensuring that federal benefits are distributed uniformly throughout the states.
He also urges the court to allow democracy to play out. The "correct answer," he tells the court, is to leave an issue as "divisive and fast-moving" as same sex marriage to the democratic process. "In that process," Clement writes, "there is a premium on persuading opponents, rather than labeling them as bigots motivated by animus."
But the government argues that DOMA violates the equal protection clause of the Constitution.
"The law denies to tens of thousands of same-sex couples who are legally married under state law an array of important federal benefits that are available to legally married opposite-sex couples," writes Solicitor General Donald B. Verrilli.
Verrilli argues that laws that discriminate on the basis of sexual orientation warrant heightened scrutiny from the courts. He points out such scrutiny is necessary because gays and lesbians have faced a "significant history of discrimination in this country," and that they have suffered from limited political power, as evidenced by the fact that states have passed initiatives banning same-sex marriage.
Lawyers for Edie Windsor reject Clement's position that DOMA is necessary to promote responsible procreation, writing in court briefs: "It is irrational, fantastical thinking to believe that the federal government's decision to treat married gay couples as unmarried under federal law will encourage straight couples to marry before having children."
The Court has allowed one hour and 50 minutes of arguments for the case.
Vicki C. Jackson is the amicus counsel, Deputy Solicitor General Sri Srinivasan will argue the jurisdictional questions for the government, Solicitor General Donald B. Verrilli Jr. will argue the merits, Paul D. Clement will argue for BLAG, and Roberta A. Kaplan for Windsor.