And one of the most talented lawyers appearing these days before the Court — Washington attorney Paul D. Clement — faced fervent opposition to his defense of DOMA from enough members of the Court to make the difference.One SCOTUSBlog included this tidbit among its discussion of the orals, adding that Ms Winsor's attorney"seemingly missed several opportunities, in answering some of the conservative Justices’ tough questioning, to the apparent consternation of gay rights lawyers in the attorney section." Don't know what that means exactly -- she was a bit rough, first timer and all, but seemed to me do a good enough job.
The first hour went to standing, including Grandpa Scalia "back in my day" comment that refusing to defend while enforcing as the matter is appealed was just not done. Earlier, I linked to a discussion suggesting that it is sound policy. I assume letting a single district judge decide DOMA is better? Strange to me, but anyhow, doubtful five justices will refuse standing. Took an hour to deal with the issue anyhow.
Next, we had the merits. Ah, Paul D. Clement, super-genius. Yes, talented in promotion of such things as torture, constitution-lite hellholes, denying people health insurance and marriage rights .... oh, and an intermediate approach in Heller regarding gun rights, just to make him a tool to some fellow conservative/(kinda)libertarian sorts. I guess someone has to defend b.s. His at times hectoring and/or smartest guy in the room tone didn't help my dislike, nor his repeated totally specious arguments.
One that stood out was the total b.s. that DOMA was important to protect states from recognizing SSM. People would get married in Hawaii (mind you, though this never was noted, SSM never actually got there) and go back to their home states and demand marriage rights. It is as if he is some random person who is not aware of the public policy exception where a state need not recognize a foreign marriage that violates local policy. Why in the hell no justice pointed this out is unclear to me. Guess Ginsburg was tired of pointing out the problems, including the "skim milk" [a fitting metaphor for a case ripe for FN4 review] version of marriage DOMA leaves in place.
Another dickish move was noting that Congress (why one house of Congress should have standing here is unclear to me; apparently, part of its, rather ONE house of Congress' powers is to ensure effective enforcement of its laws, which you know, had rather broad implications) repeatedly asked the Clinton Administration if DOMA was constitutional. Mind you, this was before Lawrence v. Texas or even Romer v. Evans. How could they have an animus?! Why DOMA of all the other big changes in marriages over the years required special action is also unclear. Finally, when asked by Alito (as usual, had some good questions), the particular background of the tax law in question doesn't really suggest a reasonable reason to single out same sex couples.
Kennedy thought the federalism argument at issue in a myriad of posts at Volokh Conspiracy made DOMA suspect, but the SG and Windsor's own lawyer wanted to focus on equal protection. Probably don't have five votes and it is unfortunate the SG didn't do more to take the federalism argument Kennedy wanted to give him. It makes sense the Administration wanted to protect federal discretion here given where federalism arguments go in other contexts, but there was a middle way here. As Kagan, next to Ginsburg perhaps the best for the side of sanity here, noted, the weaker federal claim over marriage than states' have at least goes to the strength of the valid federal interest. Its heightened scrutiny campaign is appreciated, but probably won't have a Court. Even Kagan and Breyer spoke of a "rational basis plus" and that probably will do it when necessary usually.
Alito raised an interesting question -- could the government instead of doing it this way (via a "defense" of marriage that "protects" a certain form of marriage), remove the word "marriage" and apply benefits and so forth some other fashion? Hedging a bit, Kaplan did suggest that though federalism might make a federal "marriage" law dubious, this could be done, particularly to redress discrimination. This provides a way to give federal benefits to couples in states without SSM. A sort of "beyond marriage" approach that some want in the first place. She, somewhat surprisingly, also noted that federal benefits might be limited by residency. If one resides in a non-SSM state, you might lose out, even if you got married in a place with same sex marriage.
Scalia was his usual dick self, Alito was suspicious of pressing a new form of marriage "newer than cell phones," but Roberts wasn't free from problems. Though not as much of a dick, Roberts can be a tool. He repeatedly does not seem a big fan of the S.G. and it is curious to me why (except to play gotcha when the SG didn't want to rely on it) federalism concerns didn't seem to matter to him at all. In the ACA case, some vague not proper problem was present even in an area where clear interstate commerce and tax matters was at stake. I'm not as open as some to the argument, but someone like him should be. Some think the ruling will be 6-3, written by him, based on federalism. But, he isn't showing much there, while he did show some interest in the tax argument in ACA.
I predict DOMA will fall, federalism will play a big part and even if somewhat indirect and limited, same sex equality will advance. Just how it will breakdown is a bit unclear, though five votes seems pretty apparent. At least here, just how Prop 8 falls is debatable, don't see Kennedy not being the fifth vote. Interested to see how the others fall, including if a concurring opinion deals with the equal protection issue directly.
Update: Rachel Maddow ended her first segment with a back/forth between Kaplan and Roberts on the political strength of gays/lesbians, which brings to mind Scalia and his powerful gay movement brigade. Implication is that they don't need special protection since they aren't politically powerless. (1) As she explains, that is a tad exaggerated. (2) Heightened scrutiny involves various factors, including immutability and the irrelevancy of the classification to legitimate interests (see Sotomayor entry) so that black or women getting power doesn't mean race and sex shouldn't receive that treatment. In effect, more b.s.