KWAME HOLMAN: The crowds were thinner, and made up mostly of gay marriage supporters. And, for some, the reasons for being there were intensely personal.
Nicole Connolly is a teacher from New York married to a woman who’s a captain in the U.S. Marines.
NICOLE CONNOLLY, Supporter of Same-Sex Marriage: I am here for housing allowance. I am here for medical. I am here for death benefits. I’m here for next of kin qualifications, a plethora of reasons.
KWAME HOLMAN: On this second day of arguments, the justices turned their attention to a federal law, the Defense of Marriage Act. The 1996 law signed by President Clinton specifically limits marriage to one man and one woman.
Known as DOMA, it prevents same-sex couples from receiving federal marriage-related benefits, even if they have been legally married by a state. The principal in today’s case, Edie Windsor of New York, married Thea Spyer in 2007.
EDIE WINDSOR, Plaintiff: We lived together for 40 years. We were engaged with a circle diamond pin because I wouldn’t wear a ring because I was still in the closet. I am today an out lesbian, OK, who just sued the United States of America, which is kind of overwhelming for me.
KWAME HOLMAN: Spyer died in 2009 and left her estate to Windsor, but the marriage wasn’t recognized under federal law, so Windsor faced the full estate tax burden $360,000 dollars.
Windsor challenged DOMA and won in the lower courts. The Obama administration then declined to defend the law further. With that, House Republican leaders intervened, asking the Supreme Court to uphold DOMA. Today, even some who support the law say they favor legal rights for same-sex couples, but not actual marriage.
Jim McDonald is from Alexandria, Va.
JIM MCDONALD, Alexandria, Va.: If people in civil unions were to get federal benefits that were equivalent to what other married people get, that doesn’t bother me at all. But the word marriage, I think, needs to maintain its traditional meaning.
KWAME HOLMAN: The court is expected to decide the DOMA case and yesterday’s case involving Proposition 8 in California by June.
RAY SUAREZ: Marcia Coyle of the National Law Journal was in the courtroom this morning and is back with us tonight.
And for people who don’t follow this very closely, know that the two big arguments had to do with gay marriage, what are the main differences between yesterday’s argument and today’s?
MARCIA COYLE, The National Law Journal: Well, I think there is an inherent tension here for those who support gay marriage.
In the DOMA case today, one of the arguments is that the federal government has intruded on what is a traditional state prerogative, and that is to define and regulate marriage. And yet, in the Prop 8 case, the opponents of Prop 8, which bans same-sex marriage, are attacking the voters, the state’s prerogative to define marriage.
But they have a common bond, though, and that is that the opponents of DOMA and Prop 8 see both as discrimination under the equal protection guarantees of our Constitution, and are arguing for a much tougher kind of scrutiny of what the state did in California — what California did and what the federal government did in DOMA.
RAY SUAREZ: There are so many juicy and interesting aspects to today’s argument.
It began with Vicki Jackson, a lawyer appointed by the court to do what?
MARCIA COYLE: Well, one of the — two of the roadblocks in the DOMA case, similar to the roadblock in the Prop 8 case, has to do with whether key parties in the case are properly before the Supreme Court, and whether the court has jurisdiction to hear the case.
The United States doesn’t defend DOMA. It believes it’s unconstitutional. It agrees with Edith Windsor. It agrees with the lower federal appellate court. The bipartisan Legal Advisory Committee of the House …
RAY SUAREZ: Representing the House majority, the Republicans.
MARCIA COYLE: Right, exactly — believes that it’s rightfully before the court, as does the United States.
The court needed somebody to argue the other side. They want to hear all the arguments. Do those — are those two parties properly before us? Do we have jurisdiction? So they appointed Professor Jackson.
RAY SUAREZ: So, in effect, if I understand this, they appointed a lawyer to argue to them that they had no jurisdiction to hear the case?
MARCIA COYLE: Exactly, exactly, to make those arguments. That way, they get the full picture, Ray.
RAY SUAREZ: A lot of back and forth between justices and lawyers today went to whether the Obama administration declining to enforce the law created a situation that makes this, in some sense, impossible to judge.
Tell us more about how this — how this hit the justices, because a lot of them had a lot of questions about it.
MARCIA COYLE: They did.
In fact, they are troubled by the jurisdictional problems here, not just with the United States, but also with the House Republican leadership. But most of Professor Jackson’s argument was devoted to responding to questions about the United States.
And there was some hostility. Chief Justice Roberts said, well, if the president decided that this law was unconstitutional, and yet is going to enforce it until the Supreme Court says otherwise, why didn’t the president have the courage of his convictions, if he believes the law is unconstitutional, and not enforce it?
And so there was also this feeling that this was something unprecedented, that the court was being asked to allow the United States to continue in the case when it basically agrees. Is there really a case or controversy here if the two main parties, the United States and Windsor, agree with each other?
RAY SUAREZ: We’re going to hear a lot of the interesting back and forth, because, as with many big cases, we have an audio transcript of the arguments.
First, let’s hear from Justice Sotomayor bearing down on the House Republicans’ lawyer, Paul Clement, on the motivation for the original law.
Take a listen.
ASSOCIATE JUSTICE SONIA SOTOMAYOR, U.S. Supreme Court: What gives the Federal Government the right to be concerned at all at what the definition of marriage is?
Sort of going in a circle, you’re saying — you’re saying, we can create this special category — men and women — because the states have an interest in traditional marriage that they’re trying to protect.
How do you get the federal government to have the right to create categories of that type based on an interest that’s not there, but based on an interest that belongs to the States?
PAUL CLEMENT, Attorney for U.S. House Of Representatives: Well, at least two — two responses to that, Justice Sotomayor.
First is that one interest that supports the federal government’s definition of this term is whatever federal interest justifies the underlying statute in which it appears. So, in every one of these statutes that affected, by assumption, there’s some Article I Section 8 authority …
JUSTINCE SOTOMAYOR: So they can create a class they don’t like — here, homosexuals — or a class that they consider is suspect in the marriage category, and they can create that class and decide benefits on that basis, when they themselves have no interest in the actual institution of marriage as married? The states control that?
PAUL CLEMENT: Just to clarify, Justice Sotomayor, I’m not suggesting that the federal government has any special authority to recognize traditional marriage.
RAY SUAREZ: So, how did that encounter finish?
MARCIA COYLE: First of all, this is one of the overriding issues in the case, one of two, actually, what we put under the broad rubric of federalism.
Who has the power under the Constitution to deal with marriage? And, traditionally, it has been the states. But Mr. Clement’s argument is that, OK, DOMA affects 1,100 federal laws, and the — those laws that have a reference to marriage, there is a federal interest in the programs that those laws deal with.
He is arguing as well that DOMA doesn’t regulation marriage. It’s just defining the boundaries of those programs that refer to marriage. So he also believes that there is a role for the federal government when it comes to marriage, not — not regulating it, but ensuring that there’s uniformity of federal law, and that citizens in different states are treated the same way.
RAY SUAREZ: Justice Elena Kagan also was interested in following up on this idea of animus, of discrimination, of distaste for gay people in America.
ASSOCIATE JUSTICE ELENA KAGAN, U.S. Supreme Court: So we have a whole series of cases which suggest the following, which suggest that when Congress targets a group that is not everybody’s favorite group in the world, that we look at those cases with some — even if they’re not suspect — with some rigor to say, do we really think that Congress was doing this for uniformity reasons, or do we think that Congress’ judgment was infected by dislike, by fear, by animus, and so forth?
And 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.
PAUL CLEMENT: A couple of responses, Justice Kagan.
First of all, I think I would take issue with the premise, first of all, that this is such an unusual federal involvement on an issue like marriage. If you look at historically, not only has the federal government defined marriage for its own purposes distinctly in the context of particular — particular programs; it’s also intervened in — in other areas, including in state prerogatives.
I mean, there’s a reason that four state constitutions include a prohibition on polygamy. It’s because the federal Congress insisted on them. There is a reason that, in the wake of the Civil War and in Reconstruction, Congress specifically wanted to provide benefits for spouses of freed slaves who fought for the Union.
In order to do it, it essentially had to create state law marriages, because, in the Confederacy, the slaves couldn’t get married. So they developed their own state — essentially, a federal, sort of, condition to define who was married under those laws. So where there are the needs in the past to get involved, the federal government has got involved.
RAY SUAREZ: Did it sound like Paul Clement had many supporters elsewhere on the bench for his reading of why this law exists in the first place?
MARCIA COYLE: That’s a hard read.
I think that at least four justices, or possibly five, have a problem with his arguments. Justice Kagan was getting at the second major issue in this case, and that’s whether the law discriminates under the Equal Protection Clause guarantee of the Fifth Amendment.
She wasn’t satisfied with his answer. In fact, she followed up by reading specifically from the House report on DOMA where the legislators said that they were expressing their moral disapproval of homosexuality. So she was making a point that it appeared there was another reason.
And Mr. Clement’s response is that maybe some were motivated that way, but — and if the court believes that the whole statute was based on that, then it should strike it down. But he claims there are — that was — it’s really not sufficient, because there are many other interests that justify DOMA.
RAY SUAREZ: We also have the solicitor general, Donald Verrilli, who normally would be arguing defending the federal government’s application of a law, so was in a sort of unusual role today, arguing that a law signed by the president of the United States, passed by the Congress should be struck down. Let’s take a listen.
SOLICITOR GENERAL DONALD VERRILLI, United States: Now, this statute is not called the federal Uniform Marriage Benefits Act; it’s called the Defense of Marriage Act.
And the reason for that is because the statute is not directed at uniformity in the administration of federal benefits. All — there is two equally uniform systems, the system of respecting the state choices and the system of — that BLAG is advocating here.
And what BLAG’s got to do in order to satisfy equal protection scrutiny is justify the choice between one and the other, and the difference between the two is that the Section 3 choice is a choice that — Section 3 choice is a choice that discriminates.
And so it’s not simply a matter sufficient to say, well, uniformity is enough. Section 3 discriminates.
CHIEF JUSTICE JOHN ROBERTS, U.S. Supreme Court: So, as soon as one State adopted same-sex marriage, the definition of marriage throughout the federal code had to change?
Because there is no doubt that up until that point every time Congress said marriage, they understood that they were acting under the traditional definition of marriage.
DONALD VERRILLI: Well, I don’t know, Mr. Chief Justice, why you wouldn’t assume that what Congress was doing when it enacted a statute, particularly a statute that had the word marriage in it, was assuming that the normal rule that applies in the vast majority of circumstances of deference to the state definition of marriage would be the operative principle.
RAY SUAREZ: It sounded like there like the chief justice had a little discomfort with the sweeping nature of what the court was being asked to do.
MARCIA COYLE: Right.
Mr. — Solicitor General Verrilli, he was telling the chief justice that these 1,100 statutes may well have been enacted by Congress with the traditional state definition in mind, but when Congress enacted DOMA, it made a choice between deferring to how states handle marriage and singling out a category of people who wouldn’t benefit under federal laws.
And that choice, he said, has to be justified under equal protection principles. There is some concern — the chief justice did press him and others did, I think, on whether, under his argument, if DOMA falls under equal protection principles, does that mean the state laws that prohibit same-sex marriage also have to fall?
And Mr. Verrilli said not necessarily, although they would have a very difficult time justifying them under the kind of scrutiny that Mr. Verrilli hopes the court will apply here.
RAY SUAREZ: Marcia Coyle, thanks for joining us.
MARCIA COYLE: My pleasure.
JUDY WOODRUFF: There’s much more about the same-sex marriage cases on our website. You can hear audio of today’s full arguments and also watch reaction from outside the courtroom.