DOMA as Skim MIlk

Under DOMA, Justice Ginzberg said, there were “two kinds of marriage; the full marriage, and then this sort of skim-milk marriage.” (Skim milk is to the DOMA case what broccoli was to Obamacare: nutritious enough in real life, but in the rhetoric of the Justices deficient and faintly repulsive.) Both she and Justice Anthony Kennedy, the Court’s swing vote, talked about the more than eleven hundred federal statutes affected by DOMA, and the real injury that it caused.

In American jurisprudence, it is state law that says who is married, even if federal law can determine what a married couple can get, like the spousal estate-tax exemption that Windsor, a widow, was denied. (As a New Yorker whose state recognized her marriage, she still paid three hundred and sixty-three thousand dollars more than she would have without DOMA.) The Supreme Court and federal Constitution can play a role—as they did in Loving v. Virginia, when the Court ruled that people could not be denied the right to marry for no reason other than their race. So DOMA has two potential problems: federalism and equal protection. Based on the oral arguments—which can be deceptive—the first alone might be enough to overturn it. Kennedy was openly suspicious of the way DOMA interfered with states’ rights; he would join the Court’s four liberals—Ginsburg, Breyer, Sotomayor, and Kagan, who appear to be against it for a mixture of reasons—for a majority of five.

Paul Clement didn’t have much of an reply; he talked about the value of uniformity while saying that some married couples were different than others; he defended DOMA’s reach in a way that appeared to further offend Kennedy’s sense of federalism. (“I think it is a DOMA problem,” Kennedy said when Clement tried to reassure him.) Justice Alito asked if the government could resolve the dilemma with a measure that “gets rid of the word ‘marriage,’ takes it out of the U.S. code completely,” a reminder that supposed traditionalists, faced with a case they don’t like, can be far more radical than liberals.

Clement was not sent to the Court by the Justice Department, which has more or less thrown up its hands and said that DOMA was, indeed, unconstitutional. The Administration’s withdrawal seemed to annoy the Justices, but, because of various federal precedents, does not seem to present quite as intractable a procedural problem as the “standing” question that may derail this week’s other Supreme Court marriage case, on California’s Proposition 8. The scope of the Prop 8 case also seemed to scare the Justices; after two days of oral arguments, it is the DOMA case that appears more intact. (Tom Goldstein, of SCOTUSblog, suggested that the Justices might send Prop 8 back to the lower courts for reconsideration in light of whatever they decide in Windsor.) The solicitor general, Donald Verilli, who under normal circumstances is the law’s advocate, showed up to tell the Justices that DOMA meant “that the spouse of a soldier killed in the line of duty cannot receive the dignity and solace of an official notification of next of kin.” That is not just a hypothetical example, as Staff Sergeant Tracy Dice Johnson learned when her wife, Sergeant Donna Johnson, was killed in Afghanistan, last fall.

What kind of marriage did the two Sergeant Johnsons have? One in which Tracy had no right to the wedding ring that her wife was wearing when she died, but one that her mother-in-law understood well enough to insist to the Army that Tracy be the one to accompany her daughter’s body home, where she handed the ring to her. One sees the two answers there, too, as in the Windsor case. Outside of the Court, Windsor was asked about a round pin she was wearing. She told the story about how, in 1967, Thea Spyer asked what her co-workers—at IBM, where Edith was one of the few women programmers—would say if she showed up with an engagement ring: “I said, They’d want to know who is he and where is he and when do we meet him.” And so Spyer—“my beautiful, sparkly Thea”—“gave me a circle of diamonds, instead of a diamond ring.” Their engagement lasted forty years until their wedding, four decades later, two years before Spyer died.

Everything that makes a marriage real seemed present in Windsor and Spyer’s partnership—everything that reflects the state’s interest in people being married, like the stable households they set up and the way they can, from the space of their home, engage with their community and look out for each other. After Spyer fell ill with multiple sclerosis, Windsor cared for her. And, though it may be irrelevant legally, they had the qualities we like about marriage, like love and joy. If, as Senator Rob Portman and others have illustrate, getting to know a gay or lesbian person can have a transformative effect, just introducing Windsor to the public is its own victory.

But it’s not enough—it’s not what those marriages deserve—to just rhapsodize about how wifely, or husband-like, someone was. Legal rights matter. “So it’s just the word ‘marriage’?” Alito asked. Not just the word. Ginsburg’s question, and the palpable injustice in her skim-milk answer, are why the Court must overturnDOMA. It was the skim milk souring Edith Windsor’s very real marriage. “In the midst of my grief, I realized that the federal government was treating us as strangers,” Windsor said. A circle of diamonds is not really a diamond ring.

NYorker