On Wednesday the U.S. Supreme Court heard arguments in United States v. Windsor, the case in which the Second Circuit Court of Appeals declared the Defense of Marriage Act (DOMA) unconstitutional. The issue under consideration is whether Section 3 of DOMA – which defines the term “marriage” for all purposes under federal law, including the provision of federal benefits, as “only a legal union between one man and one woman as husband and wife,” and “spouse” as “a person of the opposite sex who is a husband or a wife” – violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their state. As previously discussed, should the Court ultimately affirm the Second Circuit’s position and nullify DOMA, employers will need to reevaluate their provision of benefits, as married same-sex couples could be entitled to a host of federal benefits and protections that currently exist for heterosexual married couples.

The most striking feature of today’s argument is the extent to which a number of the Justices appear to be considering the implications of this case in combination with the other currently-pending same-sex marriage case, Hollingsworth v. Perry. For example, there were a number of examples posited by various Justices exploring what might happen if the United States were to offer the benefits of marriage to same-sex couples in committed relationships in all states, without calling it marriage, and whether striking down DOMA might lead to an equal protection lawsuit by same-sex couples in states that do not allow same-sex marriage. In exploring whether the DOMA case raises a question of federalism (i.e., does the United States have the power to define marriage – which has traditionally been left to the states), some of the Justices appeared to be considering whether that approach might avoid the difficult equal protection issues raised by the interplay of the two cases.

After parsing the jurisdictional issues raised by the case, the attorneys and Justices debated the merits. Attorney Paul Clement, arguing on behalf of the Bipartisan Legal Advisory Group (BLAG), the group representing the Republican caucus in the House of Representatives, argued that the issue is narrow. Assuming the states have the power to decide whether to recognize same-sex marriages, can the United States government adopt its own definition, or must it recognize each state’s definition?  In his view, the U.S. can specify for purposes of its own laws how marriage is to be defined.  Justice Ginsburg pointed out that given the many federal advantages of marriage, what is left if the state’s definition is ignored by the federal government? Mr. Clement responded by observing that under the tax code, for example, certain divorces/remarriages are ignored even if recognized by a state. Justice Kennedy – who could cast the swing vote in this case – countered that DOMA affects over a thousand laws going beyond taxes, creating a real conflict with traditional state authority over marriage, divorce, and child custody.

An interesting debate erupted between Mr. Clement and Justice Breyer. The question arose as to whether it is considered equal treatment for the law to recognize only opposite-sex marriages, because that way a married same-sex couple in New York is treated the same as a living-together same-sex couple in a state that does not recognize same-sex marriage, or is it unequal because the married couple in New York is treated differently depending on whether it is a same-sex or opposite-sex marriage?

Mr. Clement argued that DOMA was enacted not to discriminate against homosexuals as a class, but to address the situation that was expected to arise if Hawaii changed its law to recognize same-sex marriages by judicial fiat, resulting in other states being forced to recognize same-sex marriages entered into in Hawaii – thus foreclosing the ability of each state to address the emerging issues in their own fashion. Justice Sotomayor questioned why this should be a concern of the federal government at all, since states already have different standards for marriage, such as different eligibility ages, waiting periods, and residential requirements. Justice Ginsburg pointed out that by eliminating many federal rights for same-sex spouses, DOMA diminishes the value of what the state has declared a valid marriage. In essence, Ginsburg argued, the state now has two kinds of marriage: “the full marriage, and then this sort of skim milk marriage.”

Justice Kagan noted that until DOMA, the only uniformity in federal law was that the government would recognize any valid state marriage. Thus, it was DOMA that introduced non-uniformity. This led her to consider whether the motivation was not uniformity, but rather the targeting of a disfavored group.

Solicitor General Donald Verrilli disavowed any federalism issue in Section 3 of DOMA, relying entirely on equal protection, which seemed to upset some of the Justices. Roberta Kaplan, arguing on behalf of Ms. Windsor, observed that granting benefits to same-sex committed couples (not recognized as married under state law) in order to equalize their benefits under federal law would not raise a problem of federalism, but defining marriage more broadly for federal purposes does raise a novel and closely-argued question. In her view, the power to marry people is a power that rests with the states, not the federal government.

Ms. Kaplan noted that if a same-sex couple moving to a non-recognizing state loses a federal benefit that would otherwise be entitled to in a state recognizing their union, this might raise an equal protection claim.  Ironically, a similar hypothetical was posited by Mr. Clement as a rational basis for DOMA, claiming that the government had an interest in ensuring that a soldier with a same-sex spouse in a state recognizing same sex marriages should not be subject to the dilemma of having to resist a transfer to a non-recognizing state (apparently arguing that having no rights everywhere is kinder to this soldier than having rights in one place that might be taken away in another).

Toward the end of the arguments, Justice Roberts spearheaded a brief discussion about whether stricter scrutiny is warranted because the growing recognition of same-sex relationships reflects growing political power, and therefore gays and lesbians are no longer a disfavored group. Ms. Kaplan’s view is that this change stems not from increased political power, but rather from an evolved societal attitude – noting that the issue continues to be subject to referenda in many states by groups seeking to eliminate any possibility of state recognition of same sex marriage.

Decisions in both same-sex marriage cases are expected at the end of June. Following the opinions, we will provide a thorough analysis and explain how employers will be affected.

Photo credit: carterdayne