Before considering marriage law, justices ponder procedural puzzles

By David Lauter

March 27, 2013 12 AM PT

WASHINGTON -- Wednesday’s arguments underway before the Supreme Court could give the justices an opportunity to strike down the federal Defense of Marriage Act -- the law that denies federal benefits to same-sex couples who are legally married.

But just like Tuesday’s case challenging California’s Proposition 8 ban on same-sex marriage, a ruling on the substance of the issue could be forestalled by procedural issues. If the justices find that procedural barriers block them from getting to the merits of the case they would, in effect, decide the case by default -- a lower-court ruling that held the law unconstitutional would stand.

The justices already have indicated that at least several of them take very seriously the argument that the procedural issues bar them from resolving the merits of the DOMA case: They set aside a preliminary hour of argument solely to consider that issue, and they appointed a Harvard law professor to argue the position.

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Edith Windsor, an 83-year-old widow who lives in New York, challenged the 1996 federal marriage act after her wife, Thea Clara Spyer, died in 2009. The two were legally married in 2007, and New York recognizes same-sex marriages. But because DOMA bars recognition of their marriage by the federal government, the IRS said Windsor owed $360,000 in taxes on property she inherited from Spyer. An opposite-sex couple would be exempt from the tax bill.

Windsor sued, won in federal district court and again at the U.S. 2nd Circuit Court of Appeals. The courts ruled that by treating Windsor and Spyer differently from other legally married couples, the federal law violates Windsor’s constitutional right to equal treatment.

The Obama administration decided in 2011 that it, too, believes the law violates the Constitution. That’s where the procedural issues come up.

When the administration decided to side with Windsor and mount no defense of the law, the Republican leadership of the House of Representatives stepped in and appointed lawyers to defend the law in court. The administration also decided it would continue to enforce the law until the Supreme Court could issue a definitive ruling. Because of that, the IRS still maintains that Windsor owes back taxes.

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But federal courts will only decide cases if the parties have a genuine dispute and if each side has a clearly defined stake in the outcome. In this case, Vicki C. Jackson, the Harvard law professor appointed by the court, was to argue that there is no genuine dispute between the government and Windsor -- both agree the law violates the Constitution. And the House has no right to defend the law in court, Jackson argues, because the legislative branch cannot infringe on the power of the executive branch to enforce the laws.

Paul D. Clement, the former solicitor general who represents the House Republicans, will argue that the House does have a stake in defending the laws that Congress has passed. The administration and Windsor’s lawyers both agree that the House has no such authority. Lawyers for the administration argue that the court can resolve the merits of the case because the government has a continuing duty to enforce the law until the nation’s highest court rules.

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If the justices decide that the procedural problems prevent them from issuing a ruling on the merits of the case, the appeals court ruling would stand. The Obama administration at that point would almost certainly announce that it had gotten as definitive a decision as it could get and would no longer enforce the law. In theory, a future, opposite-leaning administration might be able to reverse that position, requiring future litigation, although with the rapid change in public opinion regarding same-sex marriage, that prospect seems remote.