It is a rematch between the main lawyers in the health care case, and it replays some of the same themes. But now the issue is same-sex marriage. The question, again, is whether a federal law — this time the Defense of Marriage Act, or DOMA — passes constitutional muster. The law says the federal government must deny benefits to gay couples who are married in states that allow such unions. The law excludes same-sex spouses from benefits like Social Security payments, health insurance and burial services. “Until DOMA is repealed or invalidated,” explained Walter Dellinger, who was acting United States solicitor general in the Clinton administration, “no gay couple is fully married.” (It is worth pausing to point out what the new case is not about. It does not concern the law’s other main part, the one that says states need not recognize same-sex marriages from other states. It is also not about the more ambitious arguments made in a suit filed in California by Theodore B. Olson and David Boies, which seeks to establish a constitutional right to same-sex marriage.) The federal appeals court in Boston on May 31 struck down the part of the marriage law that concerns federal benefits, saying there was no good reason to treat some married couples differently from others. On June 29, Paul D. Clement, who had learned the day before that he had largely lost the health care case, was back at the Supreme Court. He asked the justices to hear an appeal from the Boston decision and uphold the marriage law. Four days later, Solicitor General Donald B. Verrilli Jr., who had successfully defended the health care law, agreed that the new case warranted review. But he said the justices should strike down the marriage law. The appeals court ruling in Boston was largely based on equal protection principles. But there was a dash of federalism in it, too, one reminiscent of arguments in the health care case. Marriages have traditionally been governed by state law, Judge Michael Boudin wrote for a unanimous three-judge panel of the appeals court, raising federalism concerns that warranted a close look at whether the marriage law was justified. The trial judge, Joseph L. Tauro, had gone further, saying the marriage law overstepped Congress’s power to attach conditions to federal grants to states. For instance, Judge Tauro wrote, the Department of Veterans Affairs had threatened to take back some $19 million from Massachusetts if it allowed the burial of a veteran’s same-sex spouse in a cemetery that had been built and maintained with federal money. Most people did not take that part of Judge Tauro’s opinion very seriously, and the appeals court rejected it. But that was a month before the Supreme Court limited the health care law’s Medicaid expansion along similar lines. The important point about federalism, said Mr. Dellinger, the former Clinton administration lawyer, is that two interests that are sometimes at odds in cases about same-sex marriage line up here. “Gay rights and states’ rights are on the same side of the case,” he said. Mr. Verrilli, for his part, finds himself in an awkward position. It is ordinarily the job of the executive branch to defend laws enacted by Congress, and the Justice Department did defend the marriage law early in the Obama administration. Last year, though, Attorney General Eric H. Holder Jr. announced an about-face, saying he and President Obama had concluded that the law was unconstitutional. The administration would continue to enforce the law, Mr. Holder said, but would no longer defend it in court. After the administration’s move, House Republicans intervened in the case to defend the law. They turned to Mr. Clement, who sometimes seems to be handling every important case on the Supreme Court docket. In his Supreme Court petition, Mr. Clement wrote that the justices should hear the case because legislators were not equipped to litigate. “The House has been forced into the position of defending numerous lawsuits challenging DOMA across the nation,” he said. “That is a role for which the Justice Department — not the House — is institutionally designed.” The seven same-sex couples and three surviving spouses actually challenging the law have yet to be heard from, and they will presumably urge the Supreme Court to deny review. But there is every reason to think the court will agree to hear the case, or a similar one from California, shortly after the justices return from their summer break, with arguments around January and a decision by June. Both sides will be looking for support in the principles that animated the health care decision. In his petition, Mr. Clement quoted an observation from Justice Oliver Wendell Holmes Jr., one of Chief Justice John G. Roberts Jr.’s touchstones, that “judging the constitutionality of an act of Congress is the gravest and most delicate duty that this court is called on to perform.” Mr. Verrilli went his adversary one better, actually citing the five-day-old health care decision, National Federation of Independent Business v. Sebelius, in what was probably its first appearance in a Supreme Court brief. In the health care case, Mr. Verrilli reminded the justices, they appointed lawyers to argue positions that neither party had embraced. In the marriage case, where both the plaintiffs and the Justice Department now agree that the law is unconstitutional, Mr. Verrilli said, it would similarly be sensible to allow Mr. Clement to have his say.
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