John Roberts Hints Gays Are So Powerful They Don't Need Protection
That doctrine makes it easier to strike down laws that have a negative impact on groups that lack political power and have endured a history of discrimination (so-called "suspect classes").
But Chief Justice John Roberts seemed to suggest on Tuesday that DOMA doesn't deserve heightened scrutiny because gays have so much political power.
Roberta Kaplan, who's arguing the case against DOMA, mentioned that gay rights have evolved since 1996 when Bill Clinton signed DOMA.
"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?" Roberts responded.
Roberts added, "You don't doubt that the lobby supporting the enactment of same sex-marriage laws in different States is politically powerful, do you? ... As far as I can tell, political figures are falling over themselves to endorse your side of the case."
Kaplan replied by pointing to the anti-gay measures that individual states have managed to pass in recent years, in an apparent reference to California's gay marriage ban Proposition 8.
"The fact of the matter is, Mr. Chief Justice, is that no other group in recent history has been subjected to popular referenda to take away rights that have already been given or exclude those rights, the way gay people have," she said.
The Republican lawmakers defending DOMA also argued gays have so much political favor these days there's no way they could be a "suspect class" that lacks power.
The woman who brought the case, 83-year-old Edith Windsor, can certainly show that she has endured discrimination, Kaplan, her lawyer, contends. Windsor sued to overturn the law because she had to pay $363,000 in estate taxes when her wife died that a straight spouse wouldn't have to pay.
For Windsor, discrimination isn't "theoretical," Kaplan has told us. Windsor's brief to the Supreme Court chronicled her own "life in the shadows," as Lyle Denniston of SCOTUSBlog reported.
When she fell in love with her wife nearly 50 years ago, the brief noted, it was a “a time when lesbians and gay men risked losing their families, friends, and livelihoods if their sexual orientation became known."