In the oral arguments exchanged at The U.S. Supreme Court, there was an apparent absence of a powerful argument lawyers could have used to further strengthen the arguments in favor of Edith Windsor's case:
Apparently, the government and Edith Windsor agree that DOMA is unconstitutional. The government, however, enforces this statute.
On Page 7 (see the PDF version of the transcript), Justice Scalia points out:
"[...] I mean, the Government comes in and says "I agree" -- or if there was
jurisdiction, why did the Court ever have to get to the merits?
If you have a, let's say, a lawsuit on an -on an indebtedness and the alleged debtor comes in and says, yeah, I owe them money, but I'm just not gonna pay it, which is the equivalent of the Government saying, yeah, it's unconstitutional but I'm going to enforce it anyway.
What would happen in that -- in that indebtedness suit is that the court would enter judgment and say, if you agree that you owe it, by God, you
should pay it. And there would be a judgment right there without any consideration of the merits, right? Why didn't that happen here? [...]"
Does this mean that Justice Scalia basically begged Edith Windsor's lawyers to argue that the government simply abused its power?