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The Road To The Supreme Court Arguments On Gay Marriage


This is TALK OF THE NATION. I'm Celeste Headlee in Washington. Yesterday the Supreme Court heard the last of two cases involving the issue of same-sex marriage, one case on the constitutionality of California's Proposition 8. That proposition banned same-sex marriage in the state of California. The other case is on the Defense of Marriage Act.

There were some lively exchanges during the oral arguments but the fact is these cases - the fact that they're even before the Supreme Court represents a historic legal moment. Legal analysts and activists are predicting what the court's decision will be, but today we want to focus on what was said in the courtroom and dig a little deeper into the arguments that each side made during these historic hearings.

And we want to hear from you as well. If you've been following these cases, what did you hear during the arguments that gave you perhaps a new understanding about the issue? The number is 800-989-8255. Our email address is talk@npr.org. Or you can join the conversation at our website. Just go to npr.org and then click on TALK OF THE NATION.

Later on in the program we're going to talk about how to be a human cannonball, but first an overview of the Prop 8 and DOMA cases. Nina Totenberg is NPR's legal affairs correspondent. She's been covering the court and these two cases and joins me here now in studio 3A. Nice to have you back on TALK OF THE NATION.

NINA TOTENBERG, BYLINE: I'm pleased to be here.

HEADLEE: So a busy week for you so far. What stood out for you? Was there anything that was said, either from the attorneys or the justices, that surprised you?

TOTENBERG: No, not really. I mean it was all very fascinating. And I think that in both cases what we all knew was a problem in both cases could still be a problem in those cases. The first case was involving Prop 8, California's ban on same-sex marriage. It looked very much to most of us who are used to covering the court as if they're just not going to get to the issue. They're going to avoid the issue - at least there's a good chance of that.

HEADLEE: Meaning leaving it up to the state in that case.

TOTENBERG: No. That they don't - there's a real possibility that they will not decide any of the major issues in this case. I mean the key vote here is Justice Kennedy and at one point he said I wonder if we made a mistake even granting this case. Because there are lots of issues about whether the proponents of Proposition 8, for example, have the right to defend it in court, to appeal a lower court ruling they lost, when the state isn't appealing that ruling.

Normally you have a conflict about a state law, the state is defending the law. And the people who sponsored the initiative are not the people who go before courts and say we're defending the initiative we put on the ballot. It's the state itself. And here the state doesn't want to defend this law.

HEADLEE: So if the justices then decide by majority opinion that they have no standing to bring this case, then the lower court's ruling stands?

TOTENBERG: The lower court's ruling stands, which would mean that Proposition 8 is struck down but only for California. There are other things it could do. It could decide the DOMA case, the second case, the Defense of Marriage Act case and simply remand - send back to the lower courts - the Proposition 8 case saying, here, we've said some things here about same-sex marriage. Take a look at what we've said and apply it as best you can in dealing with Proposition 8.

It would be sort of fobbing it off, saying we don't - I think you would have to say that if they do that, what the court is saying, we don't have five votes to do anything; go see what you can do about this. And the assumption would be, in fact, that people in California would get it back on the ballot and Proposition 8 would be no longer, because I think it's pretty clear that public opinion today is not what it was when this passed in 2008.

HEADLEE: Well, let's hear for just a second - you mentioned Justice Kennedy as being the swing vote. Let's actually take a listen to Kennedy when he's - this is actually during the DOMA hearing, not the Prop 8 hearing, and he's talking about this statute.


HEADLEE: What is he talking about here?

TOTENBERG: Well, the Defense of Marriage Act, which was enacted by overwhelming majorities in 1996 in the House and Senate and signed into law by President Clinton, says that the federal government defines marriage as between one man and one woman and that it, in essence, doesn't recognize other marriages. Well, what that means is that in those states where same-sex marriage is legal, those marriages are not recognized by the federal government.

And there are about 1,100 laws that confer some sort of benefit on people who are married, whether it's tax advantages or Social Security survivor's benefits, you know...

HEADLEE: Inheritance.

TOTENBERG: Inheritance. Covering your - if you work for a federal agency, covering your spouse with medical care. All kinds of things like that. We can't even begin to think how many there are. This case involved a woman who is a widow. Her - she was - she lived with her female spouse.

HEADLEE: Right. They were married in Canada.

TOTENBERG: Well, they were married in Canada. Their marriage was recognized by the state of New York as legal. So for all practical purposes they were legally married by the state of New York or in a marriage recognized by the state of New York. And when Edie Windsor's spouse died...

HEADLEE: They wanted to collect taxes on her inheritance.

TOTENBERG: Windsor was forced to pay $363,000 in federal estate taxes that she would not have had to pay if her spouse were a man instead of a woman.


TOTENBERG: So that's the illustration. So what Justice Kennedy is saying there is here's this pervasive law involving - how can we just refuse to acknowledge - how can we stay out of this when we always - normally, the federal government recognizes the state definition of marriage. Marriage, divorce, custody - these are state issues traditionally, and the court doesn't define what marriage is for the states usually.

And here in some ways what you've got is - are two cases that are in opposition, because in the DOMA case, of course, what Justice Kennedy is saying - and I must say that he had a sort of unique perspective, but he is most likely the fifth and deciding vote if this case gets decided, as they say in legal parlance, on the merits - he said, look, this sort of seems to defy our notion of federalism. It's the states who get to define marriage, not the federal government.

The federal government recognizes whatever the states do.


TOTENBERG: Well, if that's true and the state of California defines marriage as between one man and one woman, well, then what? He didn't seem very interested in the idea - the equality argument, that you should...

HEADLEE: He's avoiding it altogether.

TOTENBERG: He's avoiding it together and sees this much more as a federalism issue in the DOMA case. In which case you can't count on him at all in the Prop 8 case.

HEADLEE: Well, let's take a call here. This is from Adam in Cocoa Beach, California. Our question was, what did you hear that gave you a new understanding of this issue? Adam, what was it for you?

ADAM: Well, first of all, I want to say that my husband and I were married in Connecticut in 2009. So I definitely have a vested interest in the DOMA case. But what interested me was the argument that the executive branch is not defending the law. So a group of Republicans from Congress are actually there defending DOMA.

And that raises all kinds of constitutional issues, you would think, because...


ADAM: There could be any kind of case that could come up where, you know, any group of congressmen could just go and defend it and create all kinds of chaos, you would think.

HEADLEE: That's a good point. Adam, thank you very much for calling. Nina, what kind of constitutional issues here? Because as Adam explains, the executive branch isn't defending it. Members of the Congress decided to defend it instead.

TOTENBERG: Well, normally the executive branch defends a law in court. And that's why there was such a brouhaha, in essence, when the Obama administration decided not to defend DOMA. You're supposed to - the tradition of the solicitor general's office is that you defend a law as long as there is an argument that can be made, a decent, a halfway decent argument that can be made.

The president made the decision that he didn't think there was such an argument to be made. But he continued to enforce the law because his duty as president is to execute the enforcement of the laws under the Constitution. So he continued to enforce the law until the courts would act on it.

Well, that leaves the law undefended because they won in the lower courts. The administration and the people advocating same-sex marriage and against DOMA, they won in the lower courts. DOMA was struck down by the lower courts. So who is there to appeal? They won. So the Republican leadership in Congress hired Paul Clement to go in and intervene. They became the interveners to defend the law.

And the court spent almost an hour hearing arguments about whether or not they could do this, whether they have any legal standing to be in court at all. And there were - there are a lot of problems to it. And our listener very well summarized what some of those problems are.

And you heard other justices say, well, here it's the House defending it. What if the Senate took the opposite position? It presents a multitude of problems. So when I say if the court gets to the merits of the DOMA case, then I think there probably are five votes to strike it down. That's my best guess.

HEADLEE: Or the Prop 8 case. I mean it sounds like they could dodge the whole thing altogether and say they're not going to get to the merits of either of them.

TOTENBERG: They could dodge the whole thing altogether, but the difference is that in the DOMA case, the lower court struck down DOMA. So DOMA would be invalidated by rule of the lower courts, at least in those areas where the courts - that those courts govern. So the First and Second Circuits Courts of Appeal have already struck down DOMA. So in the whole Northeast it would be gone.

HEADLEE: And this sounds like one of those decisions where we could be waiting for quite a while.

TOTENBERG: You could be waiting for quite - and really in some ways the counterargument, the reason to decide the case, you can almost hear the reason to decide the case. You really want to leave this sort of hanging out there, whether this law - it's struck down in the Northeast but that law doesn't govern in, let's say, other parts of the country? Another court might reach an opposite decision?

HEADLEE: OK, Nina stay with us. We're going to take a short break and then a closer look again at some of the cases that informed Tuesday and Wednesday's arguments in the Supreme Court. We want to hear from you. If you've been following Prop 8 and DOMA, what did you hear this week that gave you a new understanding into the issue? 800-989-8255. We'll be back in just a minute. I'm Celeste Headlee, and this is TALK OF THE NATION from NPR News.


HEADLEE: This is TALK OF THE NATION from NPR News. I'm Celeste Headlee. The road to this week's arguments at the Supreme Court, in which California's Proposition 8 and the federal Defense of Marriage Act were debated, they began in some ways with Bowers v. Hardwick in 1986.

That year, the Supreme Court ruled that existing state anti-sodomy statutes were legal. And then in 2003 came Lawrence v. Texas, in which the court overturned Bowers and set a precedent that may end up factoring significantly in the court's decisions on Prop 8 and DOMA.

If you've been following these cases, we want to hear from you. Have you heard something in the arguments this week that gave you new understanding about the issue? Our number is 800-989-8255. Our email address is talk@npr.org. Or go to the website, npr.org and click on TALK OF THE NATION.

NPR's legal affairs correspondent Nina Totenberg is our guest, and joining us now also to dig more deeply into the cases that have informed this week's arguments is Dale Carpenter. He's a law professor at the University of Minnesota, where he teaches courses on constitutional law and sexual orientation and the law. He's also author of the book "Flagrant Conduct: The Story of Lawrence v. Texas." Dale Carpenter joins us by phone from his office in Minneapolis. Welcome to TALK OF THE NATION.

DALE CARPENTER: Thank you very much.

HEADLEE: So you've obviously done a lot of research on this one. But let's talk in particular about Lawrence v. Texas. We heard that mentioned more than once in the arguments yesterday. Why this case - why is this case significant here?

CARPENTER: Well, Lawrence is significant, I think, for the marriage cases because the court's decision removed a huge roadblock on the path to same-sex marriage. And by that I mean if it was acceptable constitutionally for a state to criminalize intimacy between two people of the same sex, then of course it would be acceptable for the state to prohibit their marriage.

So Lawrence cleared the path, in a sense, even if it didn't quite get us all the way. I also think Justice Kennedy's reasoning in Lawrence opened the possibility of marriage by connecting sexual intimacy to longer-term relationships. That was a significant development.

HEADLEE: All right, well, Nina, we have a question here from one of our listeners here in Durham, North Carolina. Heather asks this: Arguments against gay marriage are almost always based on religion. Aren't we a secular country with separation of church and state? Churches should be able to determine for themselves how to handle this.

So what's the constitutionality here of this idea of religion and marriage?

TOTENBERG: Well, Heather is just confusing a couple of things. There is a difference between civil marriage, which is what same-sex marriage cases are all about, the ability to have - be recognized as married by the state. There's a difference between civil marriage and religious marriage, marriage in a religious ceremony.

And obviously these cases do not involve marriage in a church or a synagogue or a mosque or anything like that.

HEADLEE: Well, they could.

TOTENBERG: Well, no, but these cases do not involve that at all. So, you know, you can be married...

HEADLEE: You're talking about the cases before the Supreme Court are not addressing that.

TOTENBERG: No. You could be married today in a number of churches, for example, but the state, if you've got - the state - it is likely that the state in which you live would not recognize that marriage. Your church might, but the state doesn't. And the converse is - can be true, which is in some states you could get married, like New York or Massachusetts, and there are many churches that wouldn't perform that kind of a ceremony and wouldn't recognize that kind of a marriage.

So that's the first point. The second point is that there are reasons that states have marriage licenses. They want to make sure that underage people aren't getting married. It used to be that they - that there were even public health reasons. You know, probably most of our listeners don't remember this, but it used to be that you had to prove that you didn't have a venereal disease when you got married, that you weren't spreading a venereal disease, because there was no cure for some of those diseases.

So you know, so there are a number of reasons of interest that the state has in ensuring that people who get married are not - you know, are not abusing people, are not taking more than one spouse, all kinds of reasons like that. So - but civil marriage is very different from religious marriage.

HEADLEE: Right. OK, well, we have a call here from Andrew in Rochester, Illinois. Andrew, you're an attorney, right?

ANDREW: Yes, that's correct, and it's Rochester, Minnesota, actually.

HEADLEE: Rochester, Minnesota, OK. So tell me a little bit about what you heard that maybe gave you a better understanding of the issue.

ANDREW: Well, a little bit of background. I was actually going to law school when (unintelligible) versus Connecticut came down, the Connecticut State Supreme Court case that originally kind of set the stage for this whole changing of public opinion. And what's interesting to me and something that I've always wondered about with DOMA, with some of the research I did when I was a student, and Justice Kennedy specifically picking out the federalism issue - DOMA in my mind and my understanding of it is unique because this is one of the few times that the federal government has enacted a statute that specifically deals with something that has been explicitly reserved to the states to determine in the past. And it also hints at a problem with the common law concept called conflicts of laws, which allow the states to determine which laws from other states they're going to recognize.

And what's interesting to me is, you know, as Ms. Totenberg was talking about earlier, if the court is going to come down on either of these issues, it seems to me that they're going to find a way to avoid the merits issues. The federalism issue would be the best way to resolve DOMA, and the standing issue seems like it would be the best way to resolve the Proposition 8 case. And I'd love to hear the comments of the professor from the University of Minnesota...

HEADLEE: Yeah, that's a good one for Dale Carpenter. Thank you very much. That's Andrew calling from Rochester, Minnesota. So Dale, what do you think about this, this idea that they could come down on the side of federalism rather than morality?

CARPENTER: Well, I should disclose that I was actually one of several scholars of federalism who filed an amicus brief in the DOMA case arguing that there were very significant federalism concerns with the Defense of Marriage Act. So this is exactly the position that I've taken on this statute.

The determination of who's married in the United States has always been a determination initially made by the states. DOMA was unprecedented in our history in its sweep and I think an intrusion on the traditional domain of the states, as the more conservative justices have agreed is an area of state concern.

And I was struck yesterday by how much federalism dominated the oral argument. There certainly were significant moments when equal protection was addressed, but I counted four and maybe five justices, including significantly Justice Kennedy, who emphasized again and again and came back again and again to the federalism point, which the lawyers did not seem terribly prepared to address. They wanted to focus more on the equal protection questions.

TOTENBERG: Dale, don't you think, though, that - you know, when you say including Justice Kennedy, you mean especially Justice Kennedy?


TOTENBERG: Because the court's four liberals seem to me to be just as interested in the idea of equal protection of the law, but without Kennedy, they don't have a majority.

CARPENTER: That's exactly right. You know, what struck me about a couple of the liberal justices, and I'd have to go back and check my notes on exactly which one, but I'd put Sotomayor in this category, for example - they asked questions about if we decide this case on equal protection grounds - that is, the DOMA case - how do we limit that rationale so that it doesn't also affect what the states can do in the regulation of marriage?

It looked to me like even a couple of the more liberal justices were looking for a way to decide the DOMA case in a way that did not necessarily decide the marriage issue for the states, and so I think we could see an opinion written by Justice Kennedy joined by at least some of the liberals on the court, and maybe all four of them, stating this federalism concern.

But at the very least, Nina, I think you're exactly right that Justice Kennedy would provide the fifth vote, and his vote based on the oral argument would seem to come out of that concern.

HEADLEE: But Dale, let me ask you: How does this differ from anything that related to the civil rights movement, for example, in terms of the Supreme Court making a sweeping definition of marriage? Doesn't that also relate to the idea of interracial marriage, when courts had to step in?

CARPENTER: Well, here the claim would be that we don't need to reach the equal protection issue, say, for example, in the interracial marriage case there was a serious equal protection issue. The court, even if it's not ready to reach the equal protection issue, it is ready, it appears, at least five of them, and certainly Justice Kennedy, to reach this federalism issue and state a federalism concern, that the federal government can't distinguish among legitimate, valid marriages from the states.

And if the federal government had tried in the interracial marriage context to recognize only marriages between people of the same race, a similar federalism issue would have come up in addition to the racial dimension. And the court might have issued an early opinion on the federalism issue there. But here the court has that opportunity, and it might be an appealing one to justices who don't quite want to lead yet to same-sex marriage nationwide.

TOTENBERG: So, Dale, did you think that there are five justices who are actually ready to decide the DOMA case?

CARPENTER: I did. I mean it's a very complicated question. I did count five justices, including Justice Kennedy, who seemed ready to decide the merits of the Defense of Marriage Act case, but that is not without doubt. I mean I think you could end up with a result in both cases where the court decides to dismiss on jurisdictional grounds. But I did think there were five votes on that.

TOTENBERG: And so let me ask you the question that we were discussing before, which is, supposing the court said the House doesn't have standing to defend the law, so then the 2nd Circuit decision stands, so does the 1st Circuit. I mean what - play it out.


HEADLEE: He's laughing.

TOTENBERG: He's laughing because this is what we were talking about before. It's such a mess that you almost - they don't want to make law that will hem them in later on the question of who gets to defend a law in court. On the other hand, they don't want to leave a huge mess.

CARPENTER: Right. And I think that that's - that would be the problem with a procedural resolution of the DOMA case. It would give rise to this incredible conflict. You've got two circuits saying the Defense of Marriage Act is unconstitutional. Those rulings would be untouched so the federal government would be recognizing federal same-sex marriages in those cases, but not elsewhere in the country where we may have them in California...

HEADLEE: Oh, that would be a mess.

CARPENTER: That would be a mess. And I think that's going to be a reason to find a way to decide this issue.

What I heard the justices doing yesterday, at least the ones who were - the four who were willing to throw this out on jurisdictional grounds, I heard them almost daring the Obama administration to refuse to enforce the Defense of Marriage Act...


CARPENTER: ...and that's what I read out of, for example, Chief Justice Roberts'...


CARPENTER: ...reference to the administration having the courage of its convictions.

TOTENBERG: Oh, he didn't say the administration. He said the president.

CARPENTER: The president.

HEADLEE: Let me...


HEADLEE: Let me get this question in. We have a question here for Nina. Lisa writes: I'm so tired of hearing about the Prop 8 court review, which we were talking about earlier. It's ridiculous. The court's hearing on Obamacare didn't get as much coverage, nor the Voting Rights Act. What gives?

TOTENBERG: Well, actually, Obamacare did get that much coverage.

HEADLEE: I would think so, yeah.

TOTENBERG: I mean we had even more coverage on NPR. It got humongous coverage. I mean it was a zoo out on the steps of the Supreme Court this week, but nothing compared to Obamacare. So let me get your memory back on your - in your head. I mean I was there. The ACA got just as much...

HEADLEE: If not more.

TOTENBERG: ...coverage, if not more. You're right about the Voting Rights Act and I, you know, I think it's maybe a reflection of the times we live in that the court may strike down, and certainly sounded like it might strike down the most significant piece of civil rights legislation perhaps...

HEADLEE: The Voting Rights Act.

TOTENBERG: ...in American history after 50 years, and it hasn't gotten the same kind of coverage.

HEADLEE: Yeah. You're listening to TALK OF THE NATION from NPR News. All right. But let's go quickly, Nina, to go a little deeper into what you're talking about. In all your years of covering the Supreme Court, which are many, where does this rank in terms of attention given?

TOTENBERG: You know, there are a lot of big cases.


TOTENBERG: Let's face it. And you know, there are the abortion cases.


TOTENBERG: There was Bush versus Gore.

HEADLEE: Bush v. Gore.

TOTENBERG: There was the Pentagon Papers case. There was the Nixon tapes case. I mean it's very hard to rank them, because always when you've just been there, it seems like the most important and just - and screamingly dominating the week's events. But you know, there was Clinton v. Jones, the Paula Jones case. There are...

HEADLEE: Affirmative action at the University of Michigan.

TOTENBERG: Affirmative action, University of Michigan. We've got affirmative action back this year.


TOTENBERG: There are lots of very big cases. It's true they are interspersed. It's also true that - I mean that it is hard to remember that the coverage of the Obama health care overhaul was as big as this because these stories aren't perpetuated by members of Congress still debating them every day.

HEADLEE: Or talking points.

TOTENBERG: And talking points every day. And in fact, one suspects that that was part of the genius of Chief Justice Roberts' decision in the Obamacare case, is that the court did not become the subject of the presidential campaign.

HEADLEE: There you go. Well, I have a question here for you, Dale, before we go. One listener, Francis, in Sonoma County says I finally heard a justice address the fact that if the interest in the state is to protect procreation, then marriages without intent to have children, inability to bear children or too old to bear children would also be invalid. Your take on that?

CARPENTER: Well, there was a particularly ironic moment I thought in the court where several of the justices either know or are in marriages where there has been no procreation...


CARPENTER: ...where there are no children. And I think it would be very uncomfortable for a lot of people to embrace that argument. Obviously there is a state interest, there's a social interest in recognizing marriages either where children are present or where they're not. And let's not forget that gay people do procreate, and there are hundreds of thousands of children in this country being raised by same-sex couples...


CARPENTER: ...through adoption and through other assisted reproduction methods, all the ways that heterosexual couples also can raise children. And so the interests are no different when it comes to the raising of children in the home. Those children are better off if their parents are married, if their families are protected in law and if they're respected in our society.

HEADLEE: All right. Well, you've already said you think there could be a decision that strikes down DOMA. But Dale, what's your prediction on Prop 8? Are they going to kick that can?

CARPENTER: My hunch is - and this is hazardous, and I've been wrong so many times before about the court that you should almost take the opposite of what I say.


CARPENTER: My hunch is that there are going to be five votes to say that there's no standing because I don't think that - I don't think Justice Kennedy, for example, is going to vote that there's no right at all to same-sex marriage. I don't think he quite wants to say that. But I also don't think he's going to opt for any of the middle-range solutions like the eight-state Obama administration answer or the one-state Ninth Circuit answer.


CARPENTER: And I don't think he's ready for 50-state.

HEADLEE: We got a minute left, Nina. Your response?

TOTENBERG: Well, I'm just not sure there are five votes for anything. But I think it's highly likely that there may be five votes not to decide. In that all you have to do is agree on the bottom line, we're not going to give you a decision.

HEADLEE: There you go.

TOTENBERG: And that - that might - may be the bottom line.

HEADLEE: Nina Totenberg, NPR's legal affairs correspondent. She joined us here in Studio 3A. Thank you so much. Dale Carpenter is professor of law at the University of Minnesota and author of the book "Flagrant Conduct: The Story of Lawrence v. Texas." He joined us by phone from his office in Minneapolis, Minnesota. Dale, thanks to you also.

CARPENTER: Thank you. Transcript provided by NPR, Copyright NPR.