Wednesday’s Supreme Court Gay Marriage Arguments Live Blog

Photograph by Karen Bleier/AFP via Getty Images

Gay pride flags at the U.S. Supreme Court on March 27, 2013 in Washington, DC.

2:36 p.m. That’ll do it for today’s live blog. The court could issue its decisions in this week’s gay marriage cases at any time. But it’s likely to follow past practice, holding its most contentious cases until the end of the term. There are 93 days until June 27, which is likely to be the final day the court sits before its summer break. Meanwhile, we’ll be covering developments in this and other legal cases and controversies on Bloomberg.com and BloombergLaw.com. Thanks for joining us today.

 

2:00 p.m. The court has now posted today’s transcript and audio recording.

 

1:36 p.m.Where does your state stand on gay marriages and civil unions? The Associated Press has this interactive graphic. And Bloomberg News shows how statewide votes on gay marriage have turned out.

 

1:25 p.m. Most major news organizations are taking the same approach in their early full-argument stories — DOMA is likely to be toast. A selection of the coverage:

Washington Post: Majority of justices question constitutionality of DOMA
A majority of the Supreme Court on Wednesday questioned the constitutionality of the 1996 Defense of Marriage Act and whether it created unequal classes of married couples by extending federal benefits only to marriages between a man and a woman.

New York Times: 5 Justices Skeptical of Ban on Benefits to Gay Spouses
A majority of the justices on Wednesday questioned the constitutionality of the Defense of Marriage Act of 1996, as the Supreme Court took up the volatile issue of same-sex marriage for a second day.

Reuters: Supreme Court indicates may strike down marriage law
Supreme Court justices on Wednesday indicated interest in striking down a law that denies federal benefits to legally married same-sex couples.

NBC  News: Justices signal they might strike down federal marriage law
Hearing a challenge to the Defense of Marriage Act, which allows federal benefits to go only to heterosexual married couples, the Supreme Court indicated that it might strike down the 1996 law. After the conclusion of the oral arguments, NBC News Justice Correspondent Pete Williams reported that there seemed to be five votes to invalidate the law.

CNN: Justices somewhat receptive to repealing federal law on same-sex marriage
The Supreme Court offered at least a measure of support Wednesday for doing away with a federal law that denies legally married same-sex married couples the same range of benefits enjoyed by heterosexual partners.

Fox News: Supreme Court justices raise doubts about federal marriage law
A majority of Supreme Court justices voiced skepticism Wednesday about the legitimacy of a federal provision that prevents married gay couples from receiving a range of federal benefits, raising questions about whether the Defense of Marriage Act will stand.

Associated Press: High court skeptical of federal marriage law
The Supreme Court is indicating it could strike down the law that prevents legally married gay couples from receiving a range of federal benefits that go to married people.

 

1:00 p.m. In BuzzFeed’s recap story, it says “A majority of Supreme Court justices Wednesday appeared ready to declare unconstitutional the Defense of Marriage Act’s definition of marriage for federal purposes as limited to one man and one woman.”

 

12:48 p.m. Lawyers and politicians are reacting to today’s arguments on C-SPAN right now.

 

12:24 p.m. Oral arguments ended about 10 minutes ago. We’re going to shift from piecemeal reports from inside the room to the first comprehensive stories providing context for today’s arguments.

 

12:24 p.m. Jeffrey Toobin of the New Yorker and CNN also thinks DOMA is facing an uphill climb, but his prediction is not as definitive as the earlier post from SCOTUSblog:

    12:21 p.m. During Clement’s argument he said, Bloomberg News reports:

The government’s goal is uniform treatment of taxpayers in the various states, Clement said. Under questioning from Justice Stephen Breyer, Clement said the federal government also could decide not to recognize state-law marriages based on matters such as differing ages of consent. “You’re saying uniform treatment is good enough, no matter how odd it is,” Breyer said.

  12:18 p.m. In what may be the quote of the day, Justice Ginsburg likened same-sex marriages under DOMA to “skim-milk” marriages, the Wall Street Journal reports.   12:15 p.m. Representing House Republican leaders, Paul Clement told the court, according to the Wall Street Journal:

Mr. Clement said the federal government has a particularly acute interest in couples being treated equally across state lines.  That wouldn’t happen if same-sex couples in states with gay marriage could receive federal benefits, while same-sex couples in other states could not.  It was rational, he said, for Congress to treat all same-sex couples the same.

  12:06 p.m. An unusually exact prediction from SCOTUSblog on the final outcome:

11:55 a.m. Back to the standing question. Here’s the Wall Street Journal’s early take on the bottom line:

As the procedural portion of the day’s arguments wound down, it wasn’t completely clear that the court believed it was free and clear to rule on the merits of DOMA’s constitutionality.  The reservations the justices expressed during Wednesday’s proceedings stood in contrast to last year’s health-care arguments, where the court sent clear signals early on that it would decide the constitutionality of the health law.

11:46 a.m. Bloomberg News is reporting that at least two justices have raised the issue of conflicts between DOMA and state laws that recognize same-sex marriages:

During initial arguments today on the 1996 Defense of Marriage Act, Justice Anthony Kennedy suggested that a federal law that doesn’t recognize gay marriages that are legal in some states can create conflicts. “You are at real risk of running in conflict” with the “essence” of state powers, Kennedy said. Still, he also said there was “quite a bit” to the argument by backers of the law that the federal government at times needs to use its own definition of marriage, such as in income tax cases. Justice Ruth Bader Ginsburg said that when a marriage under state law isn’t recognized by the federal government, “One might well ask, what kind of marriage is this?”

11:36 a.m. The court’s conservatives are not pleased with how the Obama administration has handled the case. It has claimed the law is unconstitutional and refused to defend it in court. From Reuters:

Chief Justice John Roberts pressed government lawyer Sri Srinivasan on how the government will now decide which laws to defend. “What is your test?” Roberts asked. Justice Antonin Scalia, who served in the Justice Department in the 1970s, criticized its “new regime.”

11:33 a.m. Early word from the second half of today’s arguments, via SCOTUSblog:

11:28 a.m. Looks like the court thinks it has the ability to hear the DOMA case, the Wall Street Journal is reporting:

Justices asked skeptical questions of Ms. Jackson, suggesting that they didn’t buy her arguments that neither the House members who defend DOMA nor the executive branch have an interest in the case.

11:08 a.m. Tough words from Chief Justice Roberts, the Wall Street Journal is reporting:

Chief Justice John Roberts told attrorney Sri Srinivasan, the principal deputy solicitor general, that the government’s actions were “unprecedented.” To agree with a lower court ruling finding DOMA unconstitutional but yet seeking the Supreme Court to weigh in while it enforces the law is “has never been done before,” he said.

11:04 a.m. It’s deja vu all over again. The Wall Street Journal is reporting:

Conservative justices sharply questioned why the Justice Department is refusing to defend DOMA as unconstitutional but yet enforcing the law and placing the gay-marriage question before the Supreme Court. Justices also questioned whether the case belonged before the court at all.  

10:54 a.m. First report from inside the courtroom is from SCOTUSblog, and it sounds like it’s a real slog in the early going today:


10:45 a.m. As we continue to await word from inside the courtroom, it’s worth mentioning that it was announced this morning that our friends at SCOTUSblog have won a Peabody Award. The awards “recognize distinguished achievement and meritorious service by broadcasters, cable and Webcasters, producing organizations, and individuals.” Bloomberg Law is a sponsor of SCOTUSblog.

 

10:39 a.m. The libertarian Cato Institute takes a crack at answering Jusice Scalia’s question from yesterday: “When did it become unconstitutional to exclude homosexual couples from marriage?” Attorney Ted Olson answered by saying “There’s no specific date in time. This is an evolutionary cycle.” But Cato claims “either it was unconstitutional to exclude same-sex couples from marriage in 1868 or it’s still constitutional to do so.”

 

10:32 a.m. Reuters is reporting the atmosphere outside the building is more subdued today, and almost all the approximately 1,000 demonstrators are pro gay marriage.

 

10:26 a.m. Reuters has a backgrounder about Harvard Law Professor Vicki Jackson, who was appointed by the court “to address issues that affect the court’s ability to rule on the case.” She’s up first this morning.

 

10:20 a.m. Here’s what the very crowded Supreme Court press room looked like in the minutes leading up to today’s arguments, from Washington Blade’s Chris Johnson:

 

 

10:16 a.m. That’s it for decisions for today. Now we wait for the first reporting on the gay marriage arguments to emerge from the courtroom. We’ll bring it to you as it develops.

 

10:11 a.m. And in a second case today, Bloomberg News’ Greg Stohr reports:

Comcast Corp., the nation’s largest cable-television company, doesn’t have to defend against an $875 million antitrust lawsuit on behalf of as many as 2 million Philadelphia-area customers, the U.S. Supreme Court ruled.    The justices, voting 5-4 to reverse a lower court, said the case against Comcast was too unwieldy to proceed as a single class-action lawsuit.

The full decision is here.

 

10:08 a.m. A unanimous court has ruled in Millbrook v. United States. From the opinion’s headnotes:

The Federal Tort Claims Act (FTCA) waives the Government’s sovereign immunity from tort suits, but excepts from that waiver certain intentional torts, 28 U. S. C. §2680(h). Section §2680(h), in turn, contains a proviso that extends the waiver of immunity to claims for six intentional torts, including assault and battery, that are based on the“acts or omissions” of an “investigative or law enforcement officer” i.e., a federal officer “who is empowered by law to execute searches, to seize evidence, or to make arrests.” Petitioner Millbrook, a federal prisoner, sued the United States under the FTCA, alleging, inter alia, assault and battery by correctional officers. The District Court granted the Government summary judgment, and the Third Circuit affirmed, hewing to its precedent that the “law enforcement proviso” applies only to tortious conduct that occurs during the course of executing a search, seizing evidence, or making an arrest.

Held: The law enforcement proviso extends to law enforcement officers’ acts or omissions that arise within the scope of their employment, regardless of whether the officers are engaged in investigative or law enforcement activity, or are executing a search, seizing evidence, or making an arrest.

 

9:51 a.m. With one or more decisions expected to come from the court at 10:00 a.m., the Atlantic’s Andrew Cohen asks what most reporters are wondering right now: will we get a blockbuster today?

 

9:46 a.m. University of Massachusetts professor Lee Badgett discusses the economics of the U.S. Supreme Court hearing on same-sex marriage on Bloomberg TV:

 

9:28 a.m. The New York Times has a look at the friendship between conservative lawyers Ted Olson and Charles Cooper, who faced off yesterday in the Prop 8 case:

“It really made me proud to be a lawyer in the United States to see Chuck and Ted — good friends from the same political party — duking it out up there today,” said Theodore J. Boutros Jr., a lawyer with long Washington experience who is on Mr. Olson’s legal team in the marriage case but has litigated alongside Mr. Cooper in the past. “This is the way to decide legal issues. It made me feel good about the court and the country.”

And the paper profiles Maine attorney Mary Bonauto, who is on the sidelines of this week’s cases but “who some say is almost single-handedly responsible for the same-sex marriage cases now pending before the Supreme Court.”

 

9:18 a.m. In his look back at yesterday’s argument, New Yorker writer and CNN legal analyst Jeffrey Toobin has this look ahead to today’s session:

The argument on Prop 8 appeared to raise the stakes for the argument on DOMA. That case presents a narrower question—the constitutionality of a single federal law, as opposed to the marriage laws in the forty-one states that do not currently have same-sex marriage. DOMA penalizes gay and lesbian married people in states that permit same-sex marriage by denying them federal benefits and obligations. That’s a more tempting (and distasteful) target for the liberals and certainly for Kennedy himself. It may be that the Court has determined to strike down DOMA, and leave the broader issue of requiring same-sex marriage for another year.

And here’s a look at his ticket for today’s session:

 

 

9:04 a.m. The first, and probably the only, reference to Honey Boo Boo in connection with the gay marriage cases:

 

9:02 a.m. Just as there is a Supreme Court bar of lawyers who specialize in practicing before the court, there is a Supreme Court punditocracy of analysts who specialize in reading its tea leaves. Here’s what some of them took away from yesterday’s arguments about California’s Prop 8:

Lyle Denniston, SCOTUSblog: Focusing on Kennedy, although that is often the closest one can come to anticipating outcomes on a divided Court, was an even more reliable approach this time given that the other eight Justices were so clearly split: four friendly to same-sex marriage as a constitutional matter, three hostile to it — and, in the end, likely to attract a fourth to that view.

Nina Totenberg, NPR: The showdown at the same-sex-marriage corral seemed to get derailed from the get-go by the procedural issues involved in the case — a legal test of the ballot initiative banning same-sex marriage that was passed by the California voters in 2008.

Andrew Cohen, The Atlantic: None of the justices of the United States Supreme Court shared an epiphany on the topic. They are all precisely who we thought they were, who they have always been. This is the most conservative Court in 75 years — the most conservative federal appeals court in the nation — and it showed, both in the ideology of the justices’ questions and in the reluctance they expressed to issue a broad ruling.

Tony Marro, Law.com: All the justices—except for Clarence Thomas, who kept to his habit of silence during argument—asked about jurisdiction, with more than a few expressing doubt that California could delegate the defense of a state law to individuals who have no fiduciary duty to the state.

Jan Crawford, CBS News: Predicting a decision based on arguments is dangerous — much can happen as the justices cast votes and set out writing opinions. But in today’s arguments, justices on both sides seemed to be looking for a way to avoid deciding the merits of the California same-sex marriage case.

 

8:40 a.m. Though not directly on point to the gay marriage cases, Slate has a look at when lawyers started to get a bad name in society. Answer: the Middle Ages.

 

8:31 a.m. The ACLU twitter feed has this look at anti gay marriage protestors outside the court building this morning:

 

8:07 a.m. If the case were to be decided based on who had the funniest protest signs, gay marriage supporters would win in a walk, according to Quartz. Get your laughs on here. And for a more somber look at yesterday’s proceedings, go inside the courtroom with NBC’s sketch artist, the legendary Art Lien.

8:01 a.m. For more background on Windsor, check out this excellent New York Times profile from December. New York magazine ran a great slideshow with pictures throughout her life. And Tablet magazine also did a short profile of her attorney, Paul Weiss partner Roberta Kaplan.

7:55 a.m. Tom Taylor, editor of Bloomberg BNA’s US Law Week, has this shot of plaintiff Edith Windsor entering the court minutes ago:

 

7:51 a.m. In an overlooked story from yesterday, Yahoo News reported:

On Facebook and Twitter, thousands of users changed their profile pictures to the image of a pink equal sign over a red background to show their support for same-sex marriage. The graphic was a take on the usual blue and yellow logo of the Human Rights Campaign, a gay rights group that released the red image to mobilize supporters around the Supreme Court’s gay marriage hearings this week.

According to HRC, the new logo debuted on the group’s Facebook page on Monday at 1 p.m. ET and has since been shared more than 100,000 times. At least 70,000 of those shares came through followers of George Takei, a former “Star Trek” actor who is openly gay. On Tuesday, Takei changed his profile photo to the red logo and urged his followers to do the same.

 

7:48 a.m. For those of you who need a refresher, two videos will get you up to speed:

SCOTUSblog’s Tom Goldstein walks through what he’ll be looking for in this week’s arguments:

The five issues the court will be facing in this week’s cases are broken down in 90 seconds:

 

7:40 a.m. The court is expected to hand down rulings in one or more cases at 10:00 a.m. That process might take up to 15 minutes, depending on how much justices choose to read of their opinions. Then the hour and 50 minutes of arguments in the gay marriage cases will get underway. SCOTUSblog provided a list of the order of appearances:

Fifty-minute argument on the question of the Court’s jurisdiction to decide this case:

Arguing against jurisdiction, Vicki C. Jackson of Cambridge, Massachusetts, Harvard law professor, amica appointed by the Court to oppose jurisdiction, 20 minutes

Arguing for the government’s right to appeal, Deputy U.S. Solicitor General Sri Srinivasan, representing the federal government, 15 minutes

Arguing for a right to appeal for the House Republican leaders (the Bipartisan Legal Advisory Group’s majority members), Paul D. Clement of the Washington office of Bancroft PLLC, 15 minutes.

One-hour argument on the constitutionality of DOMA:

Defending constitutionality, Paul Clement, representing the House Republican leaders (BLAG’s majority), 30 minutes

Challenging constitutionality, Solicitor General Donald Verrilli, for the federal government, 15 minutes

Challenging constitutionality, Roberta A. Kaplan of the New York office of Paul, Weiss, Rifkind, Wharton & Garrison LLP, representing Edith Windsor of New York City, who sued over Section 3 of DOMA, 15 minutes.

The arguments on the constitutionality of DOMA set up a rematch between Paul Clement and Donald Verrilli, who faced off in the Obamacare arguments. Many observers thought Clement got the better of his opponent in that case, but it turned out Verrilli won in the end.

 

7:27 a.m. Welcome to Day Two of the Supreme Court arguments in the gay marriage cases. This is your live blog to all the action. Reload this page throughout the day for our latest updates.

Today’s case is United States v. Windsor, the challenge to the federal Defense of Marriage Act. DOMA, which was passed by Congress in 1996, says that the federal government will not recognize same-sex marriages, even if they are recognized by individual states. That means same-sex couples do not receive federal insurance benefits for government employees, Social Security survivors’ benefits, nor are they able to file joint tax returns.

The court must decide two procedural issues before it would get to the core of the case:

1. Since the Obama Administration agrees with the Second Circuit that DOMA is unconstitutional, does that deprive the Supreme Court of jurisdiction to decide the case? If yes, the court’s work ends here.

2. Do House Republican leaders — formally known as the Bipartisan Legal Advisory Group of the United States House of Representatives — have standing in this case? If no, the court’s work ends here.

3. Does DOMA violate the Fifth Amendment’s guarantee of equal protection of the laws?

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Edward Adams is the Multimedia Editor of Bloomberg Law

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