Wednesday, March 27, 2013

Supreme Court hearing on DOMA hints at an "easy way out" (maybe overturning); oral arguments posted


Oral arguments on DOMA have ended.  Jeffrey Toobin of CNN notes that DOMA may be in trouble, but the Court may lean in the direction that no one has standing to defend it right now, and just rule on the one plaintiff’s case. 
  
Very disturbing is the view, apparently articulated by some this morning,  that DOMA was seen by some as moral disapproval of homosexuality, as had the military ban had been before. This point when Justice Kagan read a news report from 1996 that suggested that Congress had wanted to express a categorical rejection (or a "collective moral judgment") of same-sex intimacy.  I had not been aware of this House Judiciary Committee report before.  There may simply be a sentiment that one male should never become economically dependent on another -- not a realistic idea any more.  
 
The story of Edith Windsor, now in her 80s, and her having to pay several hundred thousand dollars in inheritance taxes that a straight spouse would not have to pay, touched Justice Ginsberg, who referred to the idea of two-classes of marriage and even two-classes of citizens;  she used the term "skim milk marriage".

The CNN reverse order blog is here  .
  
Again, there are real questions about how DOMA impacts federalism.  One problem is that the benefits that the federal government pays (like social security survivorship) is affected by what states do.  Is that proper?  Another is that  “full faith and credit” is challenged, discouraging an idea of local experimentation on an uncertain idea, a concept previously seen as progressive.

ABC News has an account here and reports that Justice Kennedy questioned whether the federal government may regulate marriage, a state responsibility (with federal implications, though).

Justice Roberts castigated the Obama administration for "punting" to the Supreme Court on an issue it didn't want to defend.  


Indirectly, the question of whether Social Security is an “annuity” (funded by worker contributions) or a welfare benefit can come into question, too. 
  
The most important effect on many same-sex couples comes with estate taxes, of course. 

The links for the oral arguments and transcripts for today's argument are here (United States. v. Windsor), March 27, 2013.


Update: Later March 27

Pete Williams on NBC expressed the sentiment that the Court may very well strike down DOMA and rule that, when a state allows same-sex marriage, the federal government (and even other states) must recognize it and provide appropriate benefits.  This sounds more optimistic now than it had earlier during the day.  The story by Tim Curry is here.

On Thursday, March 28, Robert Barnes has one of the most detailed accounts of the DOMS hearings in the Washington Post, with more links to arguments, here. 

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