A key component of the gay marriage cases being reviewed by the Supreme Court this week, and something that will not be directly discussed in oral arguments, is the background of the challengers to Proposition 8 and the Defense of Marriage Act. The personal stories of the DOMA challengers will not play a prominent role in oral arguments, but could impact the Court's decision.
Lawyers seeking to challenge constitutional law often wait for years for just the right background: upright, educated, law-abiding citizens. Consider the sympathetic defendants used in the 2008 Second Amendment case, D.C. v. Heller to establish the Second Amendment as an individual right. The Cato Institute spent years looking for just the right plaintiffs to challenge Washington,the D.C., handgun ban and found an eclectic mix of people including a nurse, a mother, and Dick Heller, a D.C. police officer and long-time resident of D.C.’s dangerous southeast side who wanted to keep a handgun at home for self-defense. Having the right mix of people, including a trained law officer, may have played a role in bringing Justice Kennedy into the 5-4 majority recognizing an individual right to bear arms.
United States v. Windsor makes a similar appeal to the conservative justices. In 2007, Edith Windsor was married in Canada to her companion of 40 years. When her companion died two years later, her companion’s entire estate was left to Windsor, leaving the 83-year-old grieving widow with a $363,053 tax bill when the federal government refused to accept the marriage inheritance tax exemption.
The case obviously appeals to the sympathies of the conservative justices. While the justices rarely make public statements on political issues outside of their cases, the inheritance tax, or “death tax” as it is often derided, remains a contentious issue on the right. To see an 83-year-old widow forced to pay a large sum because of DOMA’s refusal to accept a legal marriage from another state would tug at the heart strings of many conservatives.
But don’t look for any of this to factor into the questioning during oral arguments. Justice is blind. As Chief Justice John Roberts and judicial conservatives are apt to say, judges just call balls and strikes. Despite the idealism, in a close case like this, the unspoken intangibles could be the deciding factor.