This law was passed in 1996 — almost 20 years ago. Why has it taken so long to get to an answer about its constitutionality? I did a final exam in my Constitutional Law class based on DOMA in, approximately, 1996.
One thing about the current case: It has a crisply defined embodiment of the asserted constitutional right — an 83-year old woman (Edith Windsor) whose spouse died and left her property that would be tax free if the IRS recognized her marriage and who is stuck instead with a $360,000 tax bill.
Her opponent is "United States," a formidable party, usually, but in this case, bizarrely vague:
[I]n February , Attorney General Eric H. Holder Jr. announced that he and President Obama had concluded that [DOMA] was unconstitutional and unworthy of defense in court. Mr. Holder added that the administration would continue to enforce the law.That's unpleasant. They're lying back waiting for the Court to do the difficult work.
[The administration] agrees with Ms. Windsor that the law is unconstitutional, but will not pay her the tax refund she seeks. House Republicans, represented by Paul D. Clement, a former United States solicitor general, intervened in the case to defend the law, losing in the lower courts.Does anyone want that argument to succeed? But I await Professor Jackson's arguments. It might be that the Court shouldn't rescue the administration from its politically uncomfortable position. But I feel sorry for the Edith Windsors whose cases are not governed by the 2d Circuit opinion.
Even though the administration’s legal position prevailed in the lower courts, it filed an appeal to the Supreme Court, saying the matter should be decided by the nation’s highest tribunal.
The Supreme Court appointed Vicki C. Jackson, a law professor at Harvard, to argue a position not fully supported by any party: that the case’s odd procedural posture means the court lacks jurisdiction to decide it. The court scheduled a separate 50-minute argument on that question.