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: Read the rest of this entry »