WASHINGTON — Justice Ruth Bader Ginsburg wasted no time Wednesday making clear her unhappiness with the Defense of Marriage Act’s federal prohibition on recognizing same-sex couples’ marriages.
Once the court, in the second portion of Wednesday’s arguments, began discussing the constitutionality of Section 3 of DOMA — which defines “marriage” and “spouse” in federal law as only pertaining to marriages of one man and one woman — Ginsburg asked the first question.
In characterizing the passage of DOMA represented the federal government’s decision in 1996 to stay out of the debate over same-sex couples’ marriage rights, Paul Clement, defending the law on behalf of the House Bipartisan Legal Advisory Group, faced quick challenge on that point from a skeptical Ginsburg.
“Mr. Clement, the problem is if [the government in passing DOMA is] totally for the States’ decision that there is a marriage between two people, for the Federal Government then to come in to say, ‘No joint return, no marital deduction, no Social Security benefits; your spouse is very sick but you can’t get leave’ … one might well ask, ‘What kind of marriage is this?’” she asked.
Clement replied, “I think the answer to that, Justice Ginsburg, would be to say that that is a 21 marriage under State law … and the question of what does that mean for purposes of Federal law has always been understood to be a different matter.”
Ginsburg was unimpressed and later put the point more directly, asserting that, because of the many federal benefits associated with marriage, DOMA had the result of telling states that allow same-sex couples to marry that they have “two kinds of marriage: the full marriage, and then this sort of skim milk marriage.”