Suzanne Goldberg’s Reflections on Marriage in the Supreme Court Day 2

Posted on March 28th, 2013 by Katherine Franke
 1 comment  

SuzanneGoldberg headshot            Because the news media is awash in legal analysis of the Defense of Marriage Act oral arguments earlier today, this blog post, like yesterday’s, offers a more personal view of the day at the Supreme Court.  For a more in-depth take on the arguments, please see my post, “DOMA’s Defenses Self-Destruct”.

March 28, 2013 –  Waking up for morning 2 of the Supreme Court’s marriage bonanza felt both familiar and new.  This time, I was at least somewhat more ready for DC’s early morning cold (two pairs of socks!) and also its beauty, though the Capitol still took my breath away when I arrived at the Court just after 6 a.m. with the moon hanging overhead.

Although the bar line was collegial, there was more tension in the air because fewer seats would be available in the courtroom today.  Extra counsel tables had been added for the plethora of lawyers set to argue questions about both jurisdiction and the merits of Windsor v. United States and more members of Congress were anticipated as attendees at the arguments. Still, by the time William Suter, the Court’s Clerk, strolled down the line to say good morning around 7 a.m., there were few strangers on line – we had all gotten to know our line-mates and most of us were deep in conversation rehashing yesterday’s arguments and imagining today’s.

Standing with long-time friends from the National Center for Lesbian Rights, I was struck this morning by the fact that I hadn’t met a single lawyer on line either day who was opposed to marriage equality for same-sex couples.  I imagine they were there, but the numbers must have been very small, and they were certainly very quiet.  Indeed, even in the rallies that followed both days of arguments, the crowd was overwhelmingly supportive of marriage rights, with just a scattering of “Adam and Eve, not Adam and Steve”-type signs in the crowd.

Eventually, we started snaking our way toward the courthouse’s side doors.  Going into the Supreme Court on a crowded argument day is a series of hurry up and wait experiences.  There is the rush to get to the Court and then the long wait outside.  The excitement when the courthouse doors open and then the wait to go through the metal detectors.  The line for checking identification, and then the wait to go upstairs.  And so on.  Of course, there is plenty of time since the justices do not enter the courtroom until 10 a.m.

When we were guided into the courtroom about an hour before argument was set to begin, the courtroom felt electric once again.  Most of us in the bar section had gotten little sleep in the previous 24 hours, this was the argument that I was most excited to see, in part because the Court would be devoting a full hour to DOMA’s merits in addition to the hour set for debate over whether the Court had jurisdiction to hear the case.

The presence of many federal judges who had come to watch added to the sense of moments, as did the selected officials who took seats, including House Minority Leader Nancy Pelosi.

I found myself seated almost exactly where I was yesterday, right next to the section where the reporters sit.  This is one of my favorite spots because it allows for interesting pre-argument conversation (the courtroom is a cell phone-free zone!) and a chance to observe the ebbs and flows of the argument from a media standpoint.   Indeed, when I glanced over during the first hour of arguments, which focused on jurisdiction and tended toward the technical, several reporters seemed to be thinking more about their next cup of coffee than what was written on page 939 of the Chadha case.

As 10 o’clock came into sight on the large clock above the bench and the justices filed in, the marshal started the proceedings in keeping with longstanding courtroom tradition:  “Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court.”

After several of the justices announced opinions from the bench and more new lawyers were sworn in to the Supreme Court bar, Chief Justice Roberts called the case:  “We will hear argument this morning in Case 12-307, United States v. Windsor.”  All eyes focused forward as Harvard Law School professor Vicki Jackson got up to begin the arguments on jurisdiction.

Professor Jackson was there to set out arguments for why the Court lacked authority to hear the case.  None of the litigants had taken the position that the Court lacked jurisdiction, so the Court had appointed Professor Jackson to insure that those arguments were fully developed.  Methodically, under challenging questioning, she raised a number of serious concerns about whether the United States can properly ask the Supreme Court to review a lower court decision when the U.S. believes the lower court decided the case correctly.  This is exactly what happened in the Windsor case, where the U.S. agreed with both the federal district and appeals courts that DOMA was invalid but wanted a more authoritative ruling from the nation’s highest court.

During the hour of hard-fought argument, I found myself quite unsure about what the Court would do.  On the one hand, it seemed that a majority of justices were quite skeptical about the power of the United States or the Bipartisan Legal Advisory Group (BLAG), which is defending DOMA, to invoke federal appellate jurisdiction.  (The concern about BLAG is that it purports to represent the House of Representatives, and there are many reasons to think that one branch of Congress lacks authority to defend a federal law that the executive branch believes to be invalid.)

The second hour moved to the merits – that is, whether DOMA violates the rights of same-sex couples.  Here, the Court’s leanings seem clearer.  As I say in the blog post mentioned above, DOMA’s defenses appeared to self-destruct.  No one focused on procreation today, unlike yesterday.  Likewise, there was nary a word about the need for marriage to prevent irresponsible procreation by different-sex couples.  Instead, a majority of justices took turns thrashing arguments about the federal government’s interest in uniformity and protecting state’s rights.

At around 12:15, it was all over.  We all rose and the justices left the room.  In hushed tones, the rehashing by audience members began almost instantaneously and continued as we retrieved our cell phones from their lockers and headed down the stairs.  Walking out of the courthouse, the day was now in full bloom, with the Court’s marble steps luminous in the sun, and a huge rainbow-flag flying crowd waiting just beyond in full support.

Indeed, it was this experience, coupled with the absolute flood of media attention to these cases, that made me realize what an enormous legitimacy problem the Court will have on its hands if declines to address DOMA’s constitutionality.  Because it seems so likely that the Court will not address the merits of Proposition 8 in Perry, the pressure is on for the Court to decide whether the federal government can deny more than a thousand benefits to same-sex couples who are lawfully married in their home states.  And although it is never possible to predict what the Court will do in any case, my strong sense, after today’s discussion – and its sharp contrast to yesterday’s – is that, if the Court does address the equality question, the days of federal marriage discrimination against same-sex couples will soon be coming to an end.



One comment

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