The Supremes and Same-Sex Marriage: Could Justice Alito Pull a Surprise?

PROP 8 TRACKER - One of the more intriguing aspects of the oral argument in United States v. Windsor was the role Justice Alito played in the conversation.

At least in reading the transcript, it was unclear at times whether Alito was hostile or even skeptical of Windsor’s arguments against Section 3 of DOMA. He put forward several hypothetical questions that more or less gave away that he believes Section 3 of DOMA is unconstitutional, and left little for the defenders of the law to latch onto. 

Justice Alito is relatively new to the Court, and no gay rights case has been decided since he joined. During his confirmation hearings, it was discovered that he had joined a task force in college that recommended privacy rights for gays and lesbians, and decriminalizing same-sex intimacy. 

His history before joining the Supreme Court, though, was fairly socially conservative. He’s most well-known for authoring an opinion in the Third Circuit Court of Appeals in Planned Parenthood v. Casey suggesting that the entire law limiting abortion in that case should have been upheld; the Supreme Court ultimately disagreed with his dissent in the case, and re-affirmed that there is a “liberty” found in the Fourteenth Amendment that includes the right to an abortion. He had only addressed gay rights tangentially, in a case involving a gay student who had faced bullying. He ruled in favor of the student. 

His first question in Windsor came in response to a comment from the Bipartisan Legal Advisory Group’s (BLAG) attorney Paul Clement that Congress created DOMA “with the traditional definition of marriage in mind” to use as essentially a template. Alito asks: 

Suppose we look just at the estate tax provision that’s at issue in this case, which provides especially favorable treatment to a married couple as opposed to any other individual or economic unit. What was the purpose of that? Was the purpose of that really to foster traditional marriage, or was Congress just looking for a convenient category to capture households that function as a unified conomic unit? 

In other words, was the point of a law written to regulate a “marriage” or a “spouse” to further traditional marriage, as BLAG contends, (which would make DOMA’s use of the traditional definition seem to be common sense) or was it just for simplicity and convenience in laws intended to regulate certain households (which would, if true, seem to mean that DOMA actually complicates 1,138 federal laws)? 

Clement, for his part, responded to that question by suggesting uniformity is important in defining something like marriage so that all states are treated the same, and Justice Sotomayor pointed out that it’s not uniformity, that “New York’s married couples are different than Nebraska’s” under BLAG’s view. 

Later, Clement, in response to Justice Kennedy’s questions on whether Section 3 of DOMA involves questions of federalism, suggested that regulating marriage “is not what DOMA does”, rather, it defines a term (marriage) in order to provide certain benefits. Justice Alito then asked, essentially, why didn’t the definition in DOMA use a neutral term for providing benefits, instead of defining who is married? 

He asked, and commented, specifically: 

Well, Congress could have achieved exactly what it achieved under Section 3 by excising the term “married” from the United States Code and replacing it with something more neutral. It could have said “certified domestic units,” and then defined this in exactly the way that Section 3 — exactly the way DOMA defines “marriage.” Would that make a difference? In that instance, the Federal Government wouldn’t be purporting to say who is married and who is not married; it would be saying who is entitled to various Federal benefits and burdens based on a Federal definition.


My read of this question is that it’s as if he’s asking whether it’s even rational for Congress to define marriage as such, instead of creating benefits under a (nondiscriminatory) label unrelated to marriage, and using whatever definition it chooses, because avoiding defining marriage when states could and are changing the definition now, may make more sense. It could be that he was just asking a question that another Justice had, as a way to get a definite response to someone else’s worry, but in light of the rest of his questions during the argument, it came off as more skeptical of defining marriage in the way that DOMA does, across so many statutes.


When Solicitor General Donald Verrilli, Jr., made his presentation, Justice Alito asked him about DOMA’s effects on gay military servicemembers in same-sex marriages:


Can I take you back to the example that you began with, where a member of the military is injured? So let’s say three soldiers are injured and they are all in same-sex relationships, and in each instance the other partner in this relationship wants to visit the soldier in a hospital. First is a spouse in a State that allows same-sex marriage, the second is a domestic partner in a State that allows that but not same-sex marriage, the third is in an equally committed loving relationship in a State that doesn’t involve either. Now, your argument is that under Federal law the first would be admitted, should be admitted, but the other two would be kept out?


When Verrilli suggested that the question is “whether Congress has a sufficiently persuasive justification for the exclusion that it has imposed” and that they could only find a justification under the most lenient form of rational basis the Court could use, Justice Alito said:


Let me take you back to the example. Your — your position seems to me, yes, one [gay spouse of a military servicemember] gets in, two stay out, even though your legal arguments would lead to the conclusion that they all should be treated the same.


There was then a discussion and Justice Scalia became involved in this line of questioning, and seemed to imply that it supports a view that the Government’s view of the merits is incorrect. But generally, if a Justice were hostile to an equal protection argument based on gay sexual orientation, it doesn’t seem to make sense that the Justice would use an example of gay military servicemembers married to a same-sex spouse and harmed by the law, and possibly by other laws. If nothing else, it’s counter-intuitive to any claim that there’s no valid argument against the law’s constitutionality, just because it’s counter-intuitive to invoke sympathetic figures if someone is making the opposite point entirely.


Most of Justice Alito’s questions to attorney Roberta Kaplan, arguing for Edith Windsor, involved Section 2 of DOMA, rather than Section 3. Section 2 is, of course, not at issue in this case. It’s the one that says a state does not have to recognize another state’s same-sex marriage unless it chooses to do so.


Alito asks a question about a hypothetical case involving, essentially, that section, and then adds:

What would be -­ would that be discrimination on the basis of sexual orientation? What would be the level of scrutiny? Would it survive?


Kaplan suggested that it would be a different case, and pointed to the Prop 8 arguments as more similar to the type of hypothetical Justice Alito was attempting to address. She then suggested it should be reviewed under a heightened form of judicial scrutiny.


That was the end of Justice Alito’s questioning at that point. He seemed near the end to get hung up on issues surrounding Section 2 and the question of the level of scrutiny that should be applied to a fact setting that could require a state to recognize another state’s marriage, if Kaplan’s or Verrilli’s arguments are accepted. Since he made no follow-up comments or asked no follow-up questions, it’s unclear whether that position would make him uncomfortable or if he sees it as a logical and necessary extension of the arguments made against Section 3.


In the end, it’s intriguing. Based on a fair reading of the transcript, he seems to be less hostile to arguments to strike down Section 3 of DOMA than would have been expected from a noted social conservative. Interestingly, he also seemed to be a lot less interested in the federalism arguments raised by Kennedy and others. He seemed to avoid addressing those at all in his questioning. He appeared to focus solely on the equal protection aspects of the case.


But his initial questions seemed to hint that he doesn’t think that laws which mention “marriage” or mention a “spouse” in a marriage necessarily were designed to further the opposite-sex definition of marriage. His questioning hinted that a better explanation is that laws addressing a marriage or a spouse who is part of a marriage are in fact meant to simply regulate unified households. If that’s true, it’s hard to see how the definition of marriage actually used in DOMA uncomplicates things. DOMA’s definition, based on answers to Justice Alito’s questions, seems to create another layer of regulation on top of the statutes that involve marriages and spouses.


In the event that at least five Justices believe the Court has jurisdiction in this case, we will know whether there are five votes to strike down Section 3 of DOMA on the merits, or if there are some surprises and potentially a broad vote to strike down the law. Either way, it doesn’t appear that Section 3 of DOMA will live much longer than June of this year.


(Scottie Thomaston posts at where this article first appeared. ) –cw


Tags: Scottie Thomaston, Prop 8, DOMA, Supreme Court









Vol 11 Issue 27

Pub: Apr 2, 2013