On Thursday, the Second Circuit heard oral argument in Windsor v. OPM, the DoMA challenge brought by the ACLU on behalf of Edie Windsor, who got hit with a $750,000 tax bill that would not have applied to her if her marriage had been recognized. This is one of the cases that plaintiffs are trying to persuade the Supreme Court to take even before there is a Court of Appeals decision. In Windsor, the appellate court decided to go ahead with the argument even though the cert petition is pending. If the petition is granted, the Second Circuit will suspend its consideration of the case. If the petition is denied, they will have already begun the process of producing a Court of Appeals decision.Especially given that advocates are gearing up for what is widely expected to be Supreme Court review of DoMA's constitutionality sometime this term, the Court of Appeals arguments sound more and more like rehearsal for the Supremes. Jay Bing, who blogs for Prop8TrialTracker attended the hearing; following is an excerpt of his report:
Clement [Paul Clement represents the defenders of DoMA] and the [three-judge] panel then turned to the question of the proper level of judicial scrutiny to apply to gays and lesbians–that is,whether gays and lesbians merit special protection by the courts when it comes to laws that affect them. Clement argued that gay Americans are not politically powerless because they can seek change through legislative means (for example, when the New York legislature legalized marriage equality). Chief Judge Jacobs pointed out that women can do so as well, but are afforded intermediate scrutiny, to which Clement offered the novel response that a true test of political powerlessness is whether or not a group has ever been denied the franchise. Because African-Americans and women were denied the right to vote, he argued, they were considered by the courts to be politically powerless. In making this argument, Clement asserted that the courts should not take marriage equality “off the table” by providing gays and lesbians intermediate scrutiny, but should rather leave it up to the legislature to decide.
Judge Droney asked Clement whether DOMA should be considered under the so-called ‘rational basis with bite’ test, but Clement argued in response that there is no Supreme Court precedent for such a test. Judge Droney then asked Clement to defend DOMA under the intermediate scrutiny test, which Clement responded to by pointing out Justice O’Connor’s concurrence in the Supreme Court case of Lawrence v. Texas, which noted that there is an important governmental interest in preserving tradition marriage. Clement recognized that his argument was “circular,” but asserted that this was the very nature of a definition. Judge Droney pointed out that it was Justice O’Connor’s concurrence that established the idea of the ‘rational basis with teeth’ test, but Clement responded that her opinion does not represent a majority view of the Supreme Court and should not be used by lower courts.
Next up was Roberta Kaplan, Edie Windsor’s attorney. Kaplan told the court that her client’s position was that DOMA should be considered under the least deferential strict scrutiny test since it narrowly defines a group and broadly affects that group’s rights, but noted that the law would not pass rational basis test since it created a one-time exception to the nation’s marriage laws that only affects gay people. Chief Judge Jacobs asked Kaplan about the money issue, and wondered why Congress couldn’t simply decide to save money by withholding marriage from gays and lesbians. Kaplan replied that a desire to save money had to be connected to another legitimate interest to pass constitutional muster, and when pressed by Judge Straub, she acknowledge the law would pass if some additional interest could be articulated.
... When asked by Judge Droney why Kaplan was arguing for strict scrutiny as opposed to intermediate scrutiny, Kaplan responded that, in her opinion, being gay should be seen in the eyes of the law as more similar to race than gender. Women have physical differences from men, she told the court, that allow for the argument that they have a different ability to contribute to society. Sexual orientation, like race, exhibits no such distinctions.
Chief Judge Jacobs brought up the issue of federalism, asking Kaplan why he shouldn’t accept BLAG’s argument that the states decide who to marry and Congress sets a federal definition. Kaplan replied that in the entire history of the American republic, Congress has always deferred to state definitions of marriage, even on laws that would be odious to us today (such as laws prohibiting interracial marriage). Judge Straub asked why a ruling in the Windsor case that the denial of federal benefits to gays and lesbians was unconstitutional would not necessitate extending that ruling to hold that the denial of state benefits is similarly unconstitutional. Kaplan noted that the same principles present in the Windsor case would apply, but that each state’s public policy pertaining to gay and lesbian individuals is distinct, and that any further litigation on that point would not have to use a Windsor decision as precedent...
Interestingly, however, Delery [Stuart Delery, Acting Assistant Attorney General for the Civil Division,] was asked by Judge Droney whether the federal government believed that DOMA should be considered under intermediate scrutiny or under strict scrutiny. (The government had told the court in its brief that it concluded gays and lesbians merited heightened–that is, intermediate–scrutiny.) Delery stated that the position of the federal government is that gays and lesbians should be considered under something more than simple rational basis review, but that the United States has no position on whether such scrutiny should specifically be intermediate or strict scrutiny.
Chief Judge Jacobs pointed out that Delery and the federal government’s argument that gays are politically powerless is undermined by the very fact that the Acting Assistant Attorney General was present in court arguing against DOMA. Delery responded that political powerlessness is not an all or nothing proposition, and that gays still commonly lose when their rights are put up to a popular vote. Judge Straub asked Delery why the government had decided to cease defending DOMA (which it had done until early 2011), to which Delery replied that the Justice Department, along with the President and the Attorney General, had reached a new conclusion on the level of proper scrutiny they believed sexual orientation deserved, which prompted a change in the evaluation of DOMA’s constitutionality.
Judge Straub asked Delery which government interest advanced by BLAG would uphold the law should the court resort to using rational basis scrutiny. Delery made it clear that while the federal government does believe that rational reasons for DOMA exist, it does not believe such reasons should prevail in court. Pressed by Judge Straub, however, Delery pointed to the maintenance of the status quo, a desire for uniformity in federal benefits and the decision to let the states decide for themselves how to proceed on marriage equality.
On rebuttal, Clement told the court that it is inaccurate to say that Congress has never defined marriage, since it sometimes overrides state definitions of marriage in specific contexts. In addition, he argued that before DOMA was passed in 1996, Congress could defer to state definitions and ensure uniformity all at once, since no state allowed same-sex couples to marry. In passing DOMA, he argued, Congress opted for uniformity over deference in the future.
Of those who participated in this argument, Paul Clement almost certainly will appear in the Supreme Court as well. He is the lead counsel hired by House Republicans to defend the constitutionality of DoMA in all of the challenges. It is unknown at this time who would argue the pro-equality position, since there are potentially many cases. But it's a pretty good bet that the arguments that Clement will make in the Supreme Court will track pretty closely what he said yesterday in the Windsor case.