The case of Windsor v. United States is one of several federal lawsuits which have been successful at the District Court level and are rapidly descending on the United States Supreme Court. On Wednesday of this week Paul Clement, representing the Bipartisan Legal Advisory Group (BLAG) of the United States House of Representatives defended the stature while Roberta Kaplan, representing the American Civil Liberties Union and Windsor argued that the statute is unconstitutional before 3 judges (1 appointed by President G.H.W. Bush, 1 appointed by President Bill Clinton and 1 appointed by President Barack Obama). Openly gay Acting U.S. Assistant Attorney General Stuart Delery argued for the government that the position of the United States is that DOMA fails constitutional muster under a heightened level of judicial scrutiny.
Chris Johnson of the Washington Blade did a masterful job summarizing the arguments presented before the judges:
Clement basically relied on two rather old cases to defend his position, starting with 1972's Baker v Nelson, a case in which two men filed to strike down Minnesota's statutory ban on same-sex marriages a full 30 years before any court ruled definitely in favor of marriage equality. He also brought up an even more ancient (and controversial case), 1885's Murphy v Ramsey which involved the regulation of polygamy in the then Utah Territory and that relies upon one of the most reviled cases in Supreme Court jurisprudence, Dred Scott, as a source of its legal authority. Dred Scott is the 1857 case where slaves were declared to not be citizens of the United States and was one of the flames which fueled the conflagration that became the Civil War.
It will be interesting to see how long the Second Circuit takes to release their decision and whether they will be influenced by (or will influence) the decision by the United States Supreme Court to take other pending DOMA-related cases pending on appeal before the other United States Courts of Appeals.