March 29, 2013
This week, the Supreme Court heard oral arguments on two cases dealing with same-sex marriage. Although decisions in the cases won’t be unveiled until June or July, it is possible to glean clues as to how the justices may be leaning from their comments and questions during the oral arguments.
Yesterday, we looked at five important quotes from Hollingsworth v. Perry, the case challenging California’s ban on same-sex marriage. Today, we will examine five more from United States v. Windsor, the case challenging the Defense of Marriage Act, which limits marriage to one man and one woman for purposes of federal laws and benefits.
Case: United States v. Windsor, No. 12-307
Challenging: DOMA, Law Denying Federal Benefits for Same-Sex Couples
Quote No. 1: “The question is whether or not the federal government, under our federalism scheme, has the authority to regulate marriage.” — Justice Anthony Kennedy
Analysis: Kennedy is known as a champion of state’s rights and is also believed to be the swing vote in these same-sex marriage cases. This quote could indicate that he wants the federal government to back off the marriage issue and allow the states to decide whether or not to let same-sex couples marry. Traditionally, it has been the states that have defined marriage.
Quote No. 2: “[There are] two kinds of marriage; the full marriage, and then this sort of skim-milk marriage.” — Justice Ruth Bader Ginsburg
Analysis: Bader Ginsburg is pointing out that because DOMA denies married same-sex couples the benefits offered by about 1,100 federal laws that apply to married opposite-sex, same-sex marriage is essentially the watered down version of opposite-sex marriage. Will the Court accept that there are two levels of marriage?
Quote No. 3: “What happened in 1996 — and I’m going to quote from the House Report here — is that ‘Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.'” — Justice Elena Kagan
Analysis: In a comment that drew a collective gasp from the audience in the courtroom, Kagan is citing a House Report essentially admitting that DOMA was based on moral distain for homosexuality. This could suggest that there is no other purpose for DOMA other than to stigmatize gay couples.
Quote No. 4: “You don’t doubt that the lobby supporting the enactment of same sex-marriage laws in different states is politically powerful, do you? … As far as I can tell, political figures are falling over themselves to endorse your side of the case.” — Chief Justice John Roberts
Analysis: The Chief Justice could be suggesting that homosexuals are not a weak, under-represented minority group in need of protection by the Court. He could be indicating that the movement toward marriage rights will happen in the near future with or without the Court’s backing.
Quote No. 5: “For the federal government then to come in to say ‘No joint return, no marital deduction, no Social Security benefits, your spouse is very sick but you can’t get leave’ … one might well ask, ‘What kind of marriage is this?'” — Justice Ruth Bader Ginsburg
Analysis: It’s pretty clear that Bader Ginsburg thinks DOMA is unjust and denies married same-sex couples rights that touch on many aspects of life and are inherent to the institution of marriage. The question is: How many other justices on the bench will agree with her?
Sources: The Washington Post, “Supreme Court justices conflicted on same-sex marriage case,” Robert Barnes, March 25, 2013; USA TODAY, “Key quotes from Tuesday’s Supreme Court gay marriage hearing,” March 26, 2013; USA TODAY, “Key quotes from Wednesday’s DOMA hearing,” March 27, 2013; NPR, “Skim Milk, States’ Rights And Political Clout: The High Court And DOMA,” Liz Halloran, March 27, 2013