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Is "Treating Married Couples Differently" Constitutional?

At least four Supreme Court justices appear to think not, signaling they would strike down DOMA's marriage definition for being unequal treatment. Justice Anthony Kennedy also criticized the law, but focused on whether Congress had the authority to pass it.

Posted on March 27, 2013, at 10:08 p.m. ET

Jonathan Ernst / Reuters

Plaintiff Edith Windsor greets the crowd outside the Supreme Court after arguments in her case against the Defense of Marriage Act on March 27, 2013.

WASHINGTON — It was only 24 hours later, but the same Supreme Court justices who appeared Tuesday to be pushing off a decision on state laws about same-sex couples' marriage rights appeared very comfortable Wednesday with the prospect of striking down the federal Defense of Marriage Act's definition of marriage.

Justice Anthony Kennedy, who Tuesday expressed concern about the "uncharted waters" of allowing same-sex couples to marry across the country, was by Wednesday questioning the impact of DOMA on same-sex couples already legally married by a state.

"It [impacts] 1,100 laws, which in our society means that the federal government is intertwined with the citizens' day-to-day life," Kennedy said of DOMA, which defines marriage as being between one man and one woman.

The shift was clear as Paul Clement, who is defending DOMA on behalf of the House Bipartisan Legal Advisory Group, spent much of his time answering questions about Congress' motives, and authority, in passing the law.

Kennedy focused on the latter part, asking repeated questions about constitutional protections for states' rights described as federalism, telling Clement, "You are at, at real risk of running in conflict with what has always been thought to be the essence of the state police power, which is to regulate marriage, divorce, custody."

Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan peppered Clement with questions that suggested they agreed with Edith Windsor, who brought the challenge to DOMA on grounds that it discriminated against her based on her sexual orientation.

"[Y]ou are treating the married couples differently," Sotomayor told Clement of states that allow same-sex couples to marry compared with states that do not. "You are saying that New York's married couples are different than Nebraska's."

Breyer asked, "[W]hat's special or on its own that distinguishes and thus makes rational, or whatever basis you're going to have here, treating the gay marriage differently?"

Ginsburg said that, in states that allow same-sex couples to marry, DOMA set up "two kinds of marriage: the full marriage, and then this sort of skim milk marriage."

Although Clement pressed that the aim of DOMA was to have federal uniformity on marriage, Kagan said that historically the "only uniformity" was that the federal government recognized marriages recognized by the states, so this "real difference" in the approach "suggests that maybe something — maybe Congress had something different in mind than uniformity."

"When Congress targets a group that is not everybody's favorite group in the world ... we look at those cases with some ... rigor to say, 'Do we really think that Congress was doing this for uniformity reasons, or do we think that Congress' judgment was infected by dislike, by fear, by animus, and so forth?'" Kagan added.

When Clement claimed the law was "helping the states in the sense of having each [one] make the decision for themselves," Kennedy shot back that what the law really said is, "We're helping the states ... if they do what we want them to."

Although a majority of the court appeared poised to strike down the provision, there were two sticking points. The first was on the issue of whether the case presented a question about the rights of Congress — the federalism issue — or one about equal protection under the law.

With only four justices clearly pointing to the equal protection issues, the key question is where Kennedy will end up in the case. Kennedy — joined at times by Chief Justice John Roberts and Justice Samuel Alito — spent a significant amount of time asking for the lawyers' input on the federalism question.

Olivier Douliery/Abaca Press/MCT

Both the administration, represented by Solicitor General Donald Verrilli Jr. and Windsor, represented by Roberta Kaplan, argued the law is unconstitutional on equal protection grounds. The administration — seeking to defend federal authority — has argued there is no federalism question, and Kaplan argued that there are federalism concerns but that is not the focus of Windsor's claims.

The second issue of concern for the justices appeared to be whether to back opponents' argument that laws like DOMA, which classify people according to sexual orientation, should be required to meet a heightened level of scrutiny in determining their constitutionality.

"Heightened scrutiny" is used by courts when reviewing laws that classify people based on race, religion, or sex. When deciding whether heightened scrutiny should apply, courts consider several factors, including any history of discrimination, the group's relative political powerlessness, the centrality or immutability of the characteristic in question, and the relationship between the characteristic and the individual's ability to contribute to society.

Although the administration argued heightened scrutiny should apply, most of their arguments before the court Wednesday suggested the federal government's interests in advancing the law are "nonexistent" and would fail even under the lowest level of scrutiny.

When Kaplan was up, Roberts questioned her repeatedly about the political powerlessness claim, noting recent gay rights successes.

"You don't doubt that the lobby supporting the enactment of same sex-marriage laws in different states is politically powerful, do you?" Roberts said.

When Kaplan replied that it wasn't so much about political power as it was about a growing "understanding that there is no difference" between people of different sexual orientations, Roberts remained skeptical, arguing, "as far as I can tell, political figures are falling over themselves to endorse your side of the case."

The court might not even reach that issue, however, as both Justices Sotomayor and Breyer referenced the type of scrutiny that Breyer called "rational basis-plus" and that Sotomayor described as being used when a government action "sends up a pretty good red flag" that its action was motivated "by dislike, by fear, by animus, and so forth."

Somewhere in between rational basis and intermediate scrutiny, the court could strike down DOMA under equal protection grounds using this "rational basis-plus" standard — which the court appears to have used in two other gay-rights cases — and avoid the question of whether heightened scrutiny applies to all laws that classify based on sexual orientation. Because the court is extremely cautious about applying heightened scrutiny to additional categories, the justices could prefer this route.

In using this method of resolving the case, the four justices focusing on equal protection could point to the federalism concerns raised by Kennedy as one of the red flags that lead to the use of "rational basis-plus" in the case — a route taken earlier by one of the appellate courts to have struck down the DOMA provision. This could help convince Kennedy to side with their reasoning, particularly because he authored those two earlier gay-rights opinions that appeared to use rational basis-plus.

Perhaps one of the most interesting distinctions between the two days of arguments over marriage-related laws this week was the court's look into the procedural questions about whether it could even be hearing the cases. While several justices appeared to think the court should not be hearing the Proposition 8 case, no justices appeared convinced the court lacked the ability to be hearing the DOMA challenge — despite having set aside an additional 50 minutes Wednesday to discuss the jurisdictional issues in the case.

Rulings in both cases are expected by late June.