My response to Justice Roberts’ question on DOMA

CHIEF JUSTICE ROBERTS: So 84 Senators -it’s the same question I asked before; 84 Senators based their vote on moral disapproval of gay people?
MS. KAPLAN: No, I think — I think what is true, Mr. Chief Justice, is that times can blind, and that back in 1996 people did not have the understanding that they have today, that there is no distinction, there is no constitutionally permissible distinction -
CHIEF JUSTICE ROBERTS: Well, does that mean — times can blind. Does that mean they did not base their votes on moral disapproval?
MS. KAPLAN: No; some clearly did. I think it was based on an understanding that gay — an incorrect understanding that gay couples were fundamentally different than straight couples, an understanding that I don’t think exists today and that’s the sense I’m using that times can blind. I think there was — we all can understand that people have moved on this, and now understand that there is no such distinction. So I’m not saying it was animus or bigotry, I think it was based on a misunderstanding on gay people and their —
JUSTICE SCALIA: Why — why are you so confident in that — in that judgment? How many — how many States permit gay — gay couples to marry?
MS. KAPLAN: Today? 9, Your Honor.
JUSTICE SCALIA: 9. And — and so there has been this sea change between now and 1996?
MS. KAPLAN: I think with respect to the understanding of gay people and their relationships there has been a sea change, Your Honor.
JUSTICE GINSBURG: How many States have civil unions now?
MS. KAPLAN: I believe — that was discussed in the arguments, another 8 or 9, I believe.
JUSTICE GINSBURG: And how many had it in 1996?
MS. KAPLAN: I — yes, it was much, much fewer at the time. I don’t have that number, Justice Ginsburg; I apologize.
CHIEF JUSTICE ROBERTS: I suppose the sea change has a lot to do with the political force and effectiveness of people representing, supporting your side of the case?
MS. KAPLAN: I disagree with that, Mr. Chief Justice, I think the sea change has to do, just as discussed was Bowers and Lawrence, was an understanding that there is no difference — there was fundamental difference that could justify this kind of categorical discrimination between gay couples and straight couples.
CHIEF JUSTICE ROBERTS: You don’t doubt that the lobby supporting the enactment of same sex-marriage laws in different States is politically powerful, do you?
MS. KAPLAN: With respect to that category, that categorization of the term for purposes of heightened scrutiny, I would, Your Honor. I don’t -
CHIEF JUSTICE ROBERTS: Really?
MS. KAPLAN: Yes.
CHIEF JUSTICE ROBERTS: As far as I can tell, political figures are falling over themselves to endorse your side of the case.

Overall I think that Roberta Kaplan did a good job during this banter with Chief Justice John Roberts. Although, as it played out, he was clearly coaxing her down a path so that he could spring his point: that BECAUSE gay marriage is becoming more and more accepted (and certainly more accepted than it was in 1996 when DOMA came into being) the whole “increased scrutiny” of Equal Protection under the 14th Amendment is a weak point. Kaplan did kind of fall into a trap here, for she was left to concede that the tide probably has turned in political clout and the power of public opinion.

But let’s back up. I think the biggest opportunity Kaplan missed was earlier on in this exchange. Roberts starts with a sort of mock astonishment question that in 1996 84 out of 100 educated US Senators were 100% (“solely”) motivated by moral disapproval toward gay people. He is goading her, and she knows that probably this was not entirely true, although in Jesse Helms’ case and others it was raw homophobia (Kaplan: “some clearly did”).  Her response is a bit choppy and you can tell that Roberts and Scalia were rather underwhelmed by her phrase “times can blind”. Had I been responding to Justice Roberts I would have probably said “either moral disapproval or political expediency“.

Whether 84 Senators truly felt in their heart of hearts “moral disapproval” of gay people is irrelevant. At the very least they felt a majority of their constituents did. These 84 senators, plus President Clinton, believed signing DOMA was the better choice for their political careers.  Its morality or constitutionality took a back seat. They signed into law unprecedented federal meddling into something that had for 200 years been left to the states: the powers of marriage, divorce, and custody. Equal Protection’s heightened scrutiny is meant for exactly situations like this: to avoid scapegoating a minority group, it doesn’t matter whether it was out of deep animus or political cowardice (I think we can all agree it’s the latter in Bill Clinton’s case?). Whether said minority group is currently out of favor with the public or (as Roberts snarkily put) the public is “falling over themselves to endorse” is irrelevant.