Chief Justice refutes claim that gay lobby is politically powerless

Washington D.C., Mar 27, 2013 / 14:11 pm

Supreme Court Chief Justice John Roberts suggested that the gay community is so politically powerful that it does not need special protections, citing the rapid change in public opinion over same-sex marriage.

"I suppose the sea change has a lot to do with the political force and effectiveness of people representing" gay marriage, Roberts said March 27 while listening to arguments over the constitutionality of the Defense of Marriage Act (DOMA).

"As far as I can tell, political figures are falling over themselves to endorse your side of the case," he told Roberta Kaplan, the attorney representing Edith Windsor, who contracted a civil union with another woman in New York.

The case in question, United States v. Windsor, concerns the 1996 law which defines marriage as the union of a man and a woman for federal purposes.

The court had heard arguments the day before in a case concerning Proposition 8, a California measure similarly recognizing marriage as existing solely between a man and a woman. Decisions in both cases are expected in late June.

Windsor had to pay more than $350,000 in inheritance taxes after the death of her partner because although the state of New York recognized them as being "married," the federal government did not. 

Windsor consequently filed a lawsuit claiming that DOMA violated her equal protection rights. The law is being defended by Republican leaders in the House of Representatives, because President Obama's Department of Justice has refused to do so since 2011, when the president said he believed the law to be unconstitutional and discriminatory.

Lawyers for both sides of the argument began by addressing questions of jurisdiction, and then moved on to the merits of the case. Justices voiced skepticism that they could even decide the case, because it is not being defended by the executive branch.

Since family law is normally the prerogative of states to regulate, not the federal government, several justices were intent on discussing Congress' right to define marriage.

However, Attorney Paul Clement, representing House Republicans, said that DOMA is not federal regulation of marriage, but instead acts to preserve states' rights, to prevent the federal government from recognizing same-sex "marriages" in one state and thereby pressuring other states to acknowledge them as well. 

Several justices also questioned Congress' intent in adopting DOMA, suggesting that it was based not on concerns of uniformity, but out of dislike, fear or animus toward homosexuals as a group.

Another significant question debated during the hearing was which standard of review should be used to judge the law. Normally in such cases, legislation is examined according to whether it is reasonably related to a "legitimate" government interest, in order to determine if there is a "rational basis" for the law.

In some cases, however, a "heightened" level of scrutiny is applied. In these instances, a law must be "narrowly tailored" to achieve a "compelling" government interest. This standard of review is applied when a "fundamental right" is at stake or the legislation targets race, religion or some other "suspect classification," which is determined through criteria such as political powerlessness and historical discrimination.

Clement defended DOMA's constitutionality by saying it was adopted for the sake of uniformity: "it defines the term (marriage) wherever it appears in Federal law in a consistent way."

This intent to "provide uniform treatment of taxpayers" across state lines serves as a "rational basis" for the law, he argued.

However, Solicitor General Donald Verrilli argued against DOMA on behalf of the Obama administration, suggesting that the law should be subject to a higher level of scrutiny because it targets "a class that has undeniably been subject to a history of terrible discrimination."

Verrilli argued the statute is unconstitutional because this discrimination denies equal protection of the law to "married" same-sex couples, but denied that it poses a federalism problem.

Attorney Roberta Kaplan, who agreed with Verrilli in opposing DOMA, did so for different reasons, saying she does not consider the law to be an equal protection problem, but suggested that there is no "legitimate Federal interest that is being served by Congress's decision … to undermine the determinations of the sovereign States with respect to eligibility for marriage."

Discrimination against "married" gay couples was the purpose of DOMA, she argued, and it is "undermining the policy decisions made by those States that have permitted gay couples to marry."

Kaplan said that when DOMA was passed, there was "an incorrect understanding that gay couples were fundamentally different than straight couples."

That understanding "I don't think exists today," she said. "People...now understand that there is no such distinction. So I'm not saying it was animus or bigotry, I think it was based on a misunderstanding of gay people."

But Justice Antonin Scalia questioned Kaplan about her confidence of that judgment, and noted that there has been a "sea change" in public opinion in the years since DOMA was enacted.

When Kaplan reiterated that this change was on the basis of a new "understanding," Roberts responded that this could be attributed to the profound political effectiveness of the gay lobby.

Roberts' point suggests that homosexual people are not a persecuted class who deserve special protections and "heightened scrutiny," as Verrilli's argument had suggested.

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Advocates on both sides of the issue will now wait for approximately three months to see how the court will rule in the case, a decision that could have a tremendous impact throughout the nation.