WASHINGTON – The Supreme Court is scheduled to hear almost two hours of arguments on Wednesday morning over the constitutionality of a part of the federal Defense of Marriage Act of 1996. Here is a look at the background of the case, United States v. Windsor, No. 12-307; the issues it raises; the lawyers who will argue it; and the possible outcomes.
What is at stake? The case concerns the part of the law that defines marriage as the union of a man and a woman for purposes of federal benefits. Should the court strike it down, same-sex couples in the nine states that allow such unions, along with the District of Columbia, would start to receive federal benefits. Such a ruling would not require other states to allow same-sex marriage. (That question is before the court in the case argued on Tuesday, about Proposition 8, California’s ban on same-sex marriage.) Nor does the case concern a different part of the 1996 law that allows states to refuse to recognize same-sex marriages from other states.
How did the case start? The case concerns two New York City women, Edith Windsor and Thea Clara Spyer, who married in 2007 in Canada. Ms. Spyer died in 2009, and Ms. Windsor inherited her property. The 1996 law did not allow the Internal Revenue Service to treat Ms. Windsor as a surviving spouse, and she faced a tax bill of about $360,000 that a spouse in an opposite-sex marriage would not have had to pay. Ms. Windsor sued, and in October the United States Court of Appeals for the Second Circuit, in New York,struck down the 1996 law.
What is the Obama administration’s position? Until 2011, the Justice Department defended the law in court, as it typically does all acts of Congress. That year, Attorney General Eric H. Holder Jr. announced that he and President Obama had concluded that the law was unconstitutional and unworthy of defense in court, though he added that the administration would continue to enforce the law. After the Justice Department stepped aside, House Republicans intervened to defend the law. Although the administration’s position prevailed in the lower courts, the Justice Department filed an appeal to the Supreme Court, saying the final decision should come from the highest court.
How long will the arguments last? The arguments are scheduled for 1 hour and 50 minutes. They will probably start around 10:15, after one or more of the justices summarize decisions released that day. In major cases, Chief Justice John G. Roberts Jr. typically allows lawyers a little extra time, so the arguments may not conclude until 12:30 or so. Transcripts and audio recordings will be available by about 2 p.m.
Who is arguing? Strictly speaking, there are two arguments, one on jurisdictional questions and one on the merits. The first is scheduled to last 50 minutes, the second an hour.
Vicki C. Jackson, a law professor appointed by the court to argue that it lacks jurisdiction to hear the case, will go first, for 20 minutes. Deputy Solicitor General Sri Srinivasan will go next, for 15 minutes, to argue that the federal government has standing to appeal but that House Republicans do not. Then Paul D. Clement will argue the opposite for 15 minutes on behalf of House Republicans.
In the second argument, Mr. Clement will defend the constitutionality of the 1996 law for 30 minutes. Solicitor General Donald B. Verrilli Jr. and a lawyer for Ms. Windsor, Roberta A. Kaplan, will spend 15 minutes each urging the justices to strike down the law.
What legal standard will the Supreme Court use? In ordinary cases, courts considering whether a federal law violates equal protection principles merely ask whether the law can be justified by a rational reason. That is a low bar, though the federal appeals court in Boston struck down the 1996 law under a version of it. In the case before the court, the federal appeals court in New York used a more robust standard of review, “heightened scrutiny,” which requires a showing that the challenged law is “substantially related to an important government objective.” Gay rights advocates are hoping the Supreme Court embraces that more protective standard to judge laws that discriminate on the basis of sexual orientation.
What are the possible outcomes? The court may uphold the law, meaning that gay and lesbian couples married in states that allow such unions would continue to be denied federal benefits. It could strike down the law, delivering federal benefits to such couples. A third but unlikely option would be for the court to say it is powerless to decide the issue. That would, as a practical matter, probably mean that the Obama administration, relying on decisions from the two federal appeals courts, would stop enforcing the law.