Joseph Landau wrote a post for The Stranger blog that covered oral arguments for the DOMA Supreme Court case.
• “I don’t see why he doesn’t have the courage of his convictions,” Chief Justice John Roberts said this morning, referring to President Obama. This statement came early in today’s oral arguments over the constitutionality of Section 3 of the Defense of Marriage Act (DOMA), which defines marriage for federal purposes as solely between one man and one woman. In fact, it came before the merits of the constitutional question were even discussed. It came during briefing and argument on the first of two procedural questions—whether the Obama Administration’s enforce-but-not-defend policy regarding DOMA Section 3 left this case without the requisite features of an Article III case or controversy. Some of the justices, including Chief Justice Roberts, seemed particularly troubled by the Obama Administration’s decision to enforce DOMA while refusing to defend the law’s constitutionality in court. Here is a fuller version of Chief Justice Roberts’ comment: “…[T]he Executive’s obligation to execute the law includes the obligation to execute the law consistent with the Constitution. And if [the President]has made a determination that executing the law by enforcing the terms is unconstitutional, I don’t see why he doesn’t have the courage of his convictions and execute not only the statute, but do it consistent with his view of the Constitution, rather than saying, ‘Oh, we’ll wait till the Supreme Court tells us we have no choice.'”
• Justice Breyer suggested, in response, that the president’s policy might be based on a sound reading of the Take Care Clause, which says that the president shall take care that the laws be faithfully executed. In other words, according to Justice Breyer, the president’s thinking may be that “because I have this obligation… I will continue to execute this law. I will continue to execute it though I disagree with it. And I execute it until I have an authoritative determination not to.”
…
• Clement tried to argue that DOMA was motivated not by animus, but rather a mere desire for a uniform definition of marriage in the face of state experimentation, but Justice Kagan pushed Clement on his claim to an animus-free rationale. She noted that “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. [W]e have a whole series of cases which suggest . . . that when Congress targets a group that is not everybody’s favorite group in the world, that we look at those cases with some—even if they’re not suspect—with some rigor to say, ‘Do we really think that Congress was doing this for uniformity reasons, or do we think that Congress’s judgment was infected by dislike, by fear, by animus, and so forth?’ I guess the question that this statute raises, this statute that does something that’s really never been done before, is whether that sends up a pretty good red flag that that’s what was going on.”
• Justice Ginsburg did not seem persuaded, either. DOMA “touch[es]every aspect of life. Your partner is sick. Social Security. I mean, it’s pervasive. It’s not as though, well, there’s this little federal sphere and it’s only a tax question. It’s—it’s—as Justice Kennedy said, 1100 statutes, and it affects every area of life.” Once a state recognizes the freedom of gay and lesbian couples to marry, “for the federal government then to come in to say no joint return, no marital deduction, no Social Security benefits; your spouse is very sick but you can’t get leave . . . one might well ask, what kind of marriage is this?”
