DOMA at the Supreme Court: Reflections from Today’s Hearing
Editor’s Note: Be sure to check out Brenda’s coverage of yesterday’s Supreme Court Hearing on Proposition 8.
As I got close to the Court on my way to the DOMA hearing, I was greeted with big, ugly posters with Hate Fag language. Soon, I did see our people, and they took up all the rest of the street. A large press area was cordoned off. Once inside the Gallery, I saw a bunch of folks I know: all the heads of GLBT organizations seemed to be in the Bar section. Knowing, they paid a lot of money for placeholders. I was so grateful again to Justice Ginsburg for the gift of my tickets. Anyway, Edie Windsor was right in front of me. Soon I noticed Nancy Pelosi, and we had a conversation. She hates DOMA. I don’t know, however, if the Court fails to act, if she can muster the votes necessary to repeal it. Moving along, I was glad to see Ted Olson who argued so brilliantly yesterday against Prop 8, which I told him. Finally – and by this time we’d all been waiting at least an hour inside the Gallery, I saw Valerie Jarrett and had a very strong feeling she’d be rushing back to the White House later to fill in Obama.
At the stroke of 10:00 a.m. in they walked. Chief Justice Roberts, after housekeeping details and the issuance of their ruling against class certification in the Comcast case, called on the Amica, Vicki Jackson, a Harvard Law Professor, whose very first sentence was: “There is no justiciable case before this Court.” And thus began a more than hour-long examination into whether the Court may, by the Rules of Civil Procedure, determine DOMA’s constitutionality since the executive branch of the government agrees with Edie that DOMA does not pass muster. Is there a real case and controversy? On this point, Roberts said he didn’t see why the President didn’t have the courage of his convictions and stop enforcing DOMA, rather than ask the Supreme Court to decide for him.
In sum, I feel Justice Kennedy, who on the merits is no doubt the swing vote in this case, may be tempted to fuss that the case is not properly there. But given what he said later, I don’t think he’s going to abandon the need for our equal protection. Whether or not BLAG has standing, I do feel that 5 of them, at least, will get to the merits on our side. We should note here that we want BLAG to have had standing, BLAG having been appointed & hired by the House when the Administration decided it would enforce but not defend DOMA. If BLAG were to be found not to have standing, chaos reigns. The 2nd Circuit’s decision that DOMA is unconstitutional would stand. Edie would get her money back. What would happen in the other Circuits and for other federal benefits is quite a muddle and requires an entirely different and way too complicated discussion than we can embark on here. In fact, Nancy Pelosi gave me more bad news on this: Not only, she said quietly, did the Chair of the House Administration Committee authorize $1.7 million to pay for BLAG’s lawyers so far, there is another $3.3 million of our tax dollars ready for BLAG’s next legal bill. She, who has a lot of power in the House, seemed appalled at this.
It was 11:13 a.m. (and the Court usually ends hearings at noon) before they turned to the merits. It was already, I noticed later, 55 pages into the transcript by this time! The lawyer for BLAG, Clement, made almost no sense. Justice Breyer interrupted him off the bat, asking why treat gay marriage differently? And Justice Ginsburg observed in a tone that both warmed my heart and brought tears again to my eyes that every aspect of life is affected by DOMA, that the discrimination is pervasive. I am inserting here her words that set the tone for the rest of her remarks, as well as those of Justices Breyer and Sotomayor:
“[Assume the] States’ decision that there is a marriage between two people, 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; people -if that set of attributes, one might well ask, what kind of marriage is this?”
She was on a roll, doggedly pursuing our interests, which again brought tears to my eyes because it seems like such a short while ago that she told me it would be a long, long time for same-sex marriages to be recognized, but here she was:
“How about divorce? Same thing? That you can have a Federal notion of divorce, and that that doesn’t relate to what the State statute is?”
Great point, I realized.
While I had been really, really worried about Justice Kennedy and his seeming to feel like maybe the Supreme Court doesn’t belong in this, he did get it, after all.
To quote him:
“But when it has 1,100 laws, which in our society means that the Federal Government is intertwined with the citizens’ day-to-day life, 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.”
Kennedy doesn’t seem to like the federal government messing with matters that have been left to the states and especially when we are being deprived of the benefit of 1100 federal laws. And Justice Ginsburg, not one to let matters ride, made a terrific observation, which brought laughter to the courtroom:
“You’re saying …[the] state said two kinds of marriage: the full marriage, and then this sort of skim milk marriage. (Laughter.)”
Justice Kagan, who had been quiet during the earlier part of the discussion, zinged in with what seemed like a rhetorical question about the state of Congress’s mind when it passed DOMA:
“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.”
This is great, I thought, finally, realizing how silent the four “conservatives” had been, the four who seem to believe in states’ rights, except maybe not here where DOMA effectively disembowels the meaning of any state’s definition of “marriage”.
Today’s hearing didn’t adjourn until almost 12:30. This was a moment I was anticipating since I’d been told by her assistant that Justice Ginsburg would be happy to see me for 15 minutes before their 1 p.m. conference. And I still had to go to the locker that the police would empty out – to retrieve my coat and cell phone. The place was mobbed so I decided to risk losing my coat – and cell phone – to go straight to Justice Ginsburg’s chambers via the Marshall’s office. And then there I was, in her Chambers. Justice Ginsburg (“Ruth” to me after 40 years of working with and knowing her) was right there talking with her 3 clerks. After introducing me, she led me to her office, stopping to show off a birthday gift she’d just received: a big photo of Elizabeth Cady Stanton on her 80th birthday, the same birthday Ruth is celebrating now, herself. She told me how she much she admires Stanton, what a great writer and speaker she was. As we walked into her Chamber, I told Ruth how much I’ve enjoyed digging into all the briefs to prepare for the hearings of the past two days, how much, in fact, I like the whole subject of Constitutional Law. She quietly observed that there is a whole lot of civil procedure raised by these cases, too. And then she showed me the bobble-headed figure the artist had made of her with little things at her feet, representing some of Ruth’s biggest cases. As the clock ticked, I knew it was almost conference time. We headed to the hallway, and there, as if having been summoned, was Justice Kennedy. I was introduced by her to him as the person who’d started the ACLU’s Women’s Rights Project with her. I mentioned that I live in California (he’s from there), but Ruth noted that I’d lived on the east coast for many years. He said his children have moved to the D.C. area now. I said he was very lucky, thinking about how my daughter and grandsons are technically nearby (in the Bay Area) but oh so far when it comes to actually getting together.
As they entered the elevator to go to their conference, I thought again about how all this really is about family, what it means and how we celebrate and appreciate each other. And I hope my family, and my daughter’s and all the others just like us, will be certified as just as real as all straight marriages are by the decisions in these two momentous marriage cases.
Brenda Feigen is a noted activist with a legacy that goes back decades. Co-Founder of the National Women’s Political Caucus, Ms. Magazine and one-time Vice President of the National Organization for Women, and currently heading her own private practice in Los Angeles, Equality California is proud to count Brenda as a member.