DOMA at the Supreme Court, Explained

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March 27, 2013
Legal Director Jon W. Davidson

Today was another good day at the Supreme Court.

While it is always hard to know for sure based on the questions posed, it seemed that a majority of the Court is ready to hold Section 3 of the so-called Defense of Marriage Act (DOMA) to be unconstitutional and end its requirement that the federal government treat all legally married same-sex couples as if they were single.

Nearly half of the argument time today was devoted to questions about whether the United States v. Windsor challenge to DOMA had properly been brought before the Court. Justices posed heady procedural questions about whether a committee of one house of Congress—or even one house itself—has a right to appeal if a law it voted for is struck down. Members of the Court also questioned whether the Department of Justice should be able to file an appeal of a ruling when it was on the winning side of the lower court ruling.

If you had only heard this part of the argument, you might not even realize this was a gay rights case.

But one positive sign is that the three justices who suggested that perhaps the Court should not reach the question of whether Section 3 of DOMA is unconstitutional were among its most conservative members (Justices Antonin Scalia and Samuel Alito, and Chief Justice Roberts), which might suggest that they are concerned about what a majority of the Court will do if that question is decided.

When the argument switched to DOMA’s validity, there were numerous other encouraging signs. As during yesterday’s argument, Justice Anthony Kennedy again expressed concern about the rights of children of same-sex couples. When the other side argued that the goal of DOMA was to protect states and allow them to experiment, Justice Kennedy said he was troubled by the fact that DOMA only “helps” the states that do not want to respect marriages entered by lesbians and gay men.

Justice Elena Kagan explained that DOMA raises “red flag[s]” by only seeking a uniform federal rule about who is married with regard to “a group that is not everybody’s favorite group in the world.” Justice Sonia Sotomayor questioned what right the federal government had to create categories of marriage. And Justice Stephen Breyer was worried that, if having a uniform federal definition is enough reason to exclude some married people from receiving federal benefits, then nothing would stop Congress from choosing arbitrary criteria (like the age of the spouses, or whether a medical exam was passed before marrying) as criteria for federal marriage recognition.

In one of the most positive exchanges during the argument, Justice Ruth Bader Ginsburg noted the harms imposed by DOMA. She discussed how federal marriage benefits are pervasive and “touch every aspect of life.” She also pointed out that DOMA diminishes what numerous states have said is a marriage, treating some of those marriages as “sort of skim-milk marriage.” She also noted that, even before the Court recognized that laws that discriminate based on sex deserve heightened scrutiny, it struck down such a law under the more lenient “rational basis” test because it saw the law as “rank discrimination.”

It was incredibly gratifying to see the Solicitor General—our government’s lead Supreme Court lawyer—pointedly conclude that Section 3 of DOMA “is discrimination” and then voice that “it’s time for the Court to recognize that excluding lawfully married gay and lesbian couples from federal benefits cannot be reconciled with our fundamental commitment to equal treatment under law.”

I believe that time is at hand. 

Learn more: Marriage at the Supreme Court

Read our blog series "From Sex to Marriage: How We Got From Lawrence v. Texas to the Cases Against DOMA and Prop 8."