About midway through the argument, Paul Clement, who was representing the House Republicans and defending DOMA, was cruising along. He was portraying DOMA as almost a kind of housekeeping measure, designed to keep federal law consistent across all fifty states. As Clement told it, there was almost no ideological content to the law at all.
Then Justice Elena Kagan swiftly and elegantly lowered the boom on him. She said, “Well, is what happened in 1996—and I’m going to quote from the House Report here—is that ‘Congress decided … to express moral disapproval of homosexuality.’” A collective woo went through the audience. Kagan had the temerity to tell what everyone knew to be the truth—that DOMA was a bigoted law designed to humiliate and oppress gay people.
Clement, an eloquent advocate in oral arguments, was reduced to stammering like Ralph Kramden. He said that was not enough to invalidate the law: “Look, we are not going to strike down a statute just because a couple of legislators may have had an improper motive.” But suddenly it was clear. No one could deny that there was an improper motive—anti-gay prejudice—underlying DOMA.
But the second key moment illustrated the difference between 1996 and 2013. Toward the end of the argument, Roberts asked Roberta Kaplan, the lawyer for Windsor, “You don’t doubt that the lobby supporting the enactment of same sex-marriage laws in different states is politically powerful, do you?” Kaplan—somewhat improbably —denied it. Roberts fought back: “As far as I can tell, political figures are falling over themselves to endorse your side of the case.”
But Roberts was right on both counts—that the gay-rights movement is politically powerful and many politicians have been lining up to support same-sex marriage. Roberts was raising the point to argue that gay people no longer needed the protection of the courts. They could take care of themselves in the rough and tumble of politics. In this Roberts was half right. Gay people now can take care of themselves—but they also suffer under the yoke of discriminatory laws like DOMA.
The larger point was clear: times have changed. Gay people deserve changes in the law—now. That’s why we have courts. But the extraordinary subtext of the two days of arguments was that everyone knew those changes were coming, with or without the Supreme Court. That’s why everyone could relax (sort of) in the courtroom. Everyone knew how this story ended.