Gay Marriage: Listen to the US Supreme Court Argue

One of the great things about the US legal system is its genuine attempt to be transparent and open. The US Supreme Court makes available audio recordings of the oral argument (submissions by lawyers and questioning by the members of the bench) and there are a number of projects that maintain those recordings online for availability. Better yet, transcripts are almost immediately available. In a country as large as that, with a case load to boot, what an achievement. If only the High Court of Australia could manage something similar, so that all of us (and not just Canberrans) might be able to hear first-hand the arguments in our nations highest court.

This week, the US Supreme Court is considering, in part, gay marriage and yesterday they reviewed DOMA. In a case named United States v Windsor (Docket No. 12-307).

The Defense of Marriage Act (DOMA), enacted in 1996, states that, for the purposes of federal law, the words “marriage” and “spouse” refer to legal unions between one man and one woman. Since that time, some states have authorized same-sex marriage. In other cases regarding the DOMA, federal courts have ruled it unconstitutional under the Fifth Amendment, but the courts have disagreed on the rationale.

Edith Windsor is the widow and sole executor of the estate of her late spouse, Thea Clara Spyer, who died in 2009. The two were married in Toronto, Canada, in 2007, and their marriage was recognized by New York state law. Thea Syper left her estate to her spouse, and because their marriage was not recognized by federal law, the government imposed $363,000 in taxes. Had their marriage been recognized, the estate would have qualified for a marital exemption, and no taxes would have been imposed.

On November 9, 2010 Windsor filed suit in district court seeking a declaration that the Defense of Marriage Act was unconstitutional. At the time the suit was filed, the government’s position was that DOMA must be defended. On February 23, 2011, the President and the Attorney General announced that they would not defend DOMA. On April 18, 2011, the Bipartisan Legal Advisory Group of the House of Representatives filed a petition to intervene in defense of DOMA and motioned to dismiss the case. The district court denied the motion, and later held that DOMA was unconstitutional. The U.S. Court of Appeals for the Second Circuit affirmed.

The questions on this appeal are:

Does the executive branch’s agreement with the lower court that the act is unconstitutional deprive the Supreme Court of jurisdiction to decide the case?

Does the Bipartisan Legal Advisory Group of the House of Representatives have standing in the case?

Does the Defense of Marriage Act, which defines the term “marriage” under federal law as a “legal union between one man and one woman” deprive same-sex couples who are legally married under state laws of their Fifth Amendment rights to equal protection under federal law?

The full audio and transcripts can be found here.