Supreme Court questions DOMA law

Hundreds rally outside the Supreme Court March 27. (Chip Somodevilla/Getty)

A majority of Supreme Court justices expressed concern about a federal law that excludes same-sex couples from marriage in the court's second gay marriage case in history on Wednesday. The probing questions from both wings of the court suggest the law could be struck down in a victory for the gay rights movement, just a day after it appeared unlikely the court would decide the Proposition 8 California case in a way that broadly affirmed gay marriage.

At the arguments, the court's conservative leaning justices asked pointed questions about whether the 1996 Defense of Marriage Act intrudes into states' traditional right to regulate marriage, while the more liberal justices seemed amenable to the argument that DOMA discriminates against gay people and was passed with the intention of excluding an unpopular group.

The law prohibits the federal government from recognizing same-sex marriages even in the nine states and District of Columbia that allow them. Justices could strike it down in a narrow way that would force the federal government to recognize same-sex marriages only in states where it's already allowed, or, much less likely, in a broader way that would make dozens of state gay marriage bans legally vulnerable. The Obama administration has declined to defend the law in court because it believes it is unconstitutional, so a group of House representatives appointed attorney Paul Clement to defend it.

Key swing vote Anthony Kennedy, who has written two landmark opinions affirming gay rights, seemed unconvinced by the argument advanced by Clement that DOMA defines marriage as only between opposite-sex couples to avoid confusion. Clement said that the federal government has an interest in "uniformity," and passed the law to avoid having to treat same-sex couples differently based on whether they live in states that allow gay marriage or not. But Kennedy pointed out that DOMA excludes gay couples from marriage in more than 1,100 federal statutes and laws, which has a substantial impact on the "day to day life" of gay couples and their children. He said the law does not provide uniformity because it affects "only one aspect of marriage."

Justice Ruth Bader Ginsburg interjected that excluding married couples from sick leave, tax benefits, Social Security survivor benefits, and hundreds of other federal benefits and obligations relegates same-sex couples to a "skim milk marriage," that is substantially worse than what heterosexual couples have access to. Justice Elena Kagan suggested that the law was not passed for uniformity's sake, but to discriminate. She read aloud from the House report on the law that said it was passed to express "moral disapproval of homosexuality."

Chief Justice John Roberts objected to the argument that Congress passed DOMA based on a dislike or hatred for gays and lesbians. He asked Attorney General Donald Verrilli, representing the Obama administration, whether he believed the 84 senators who voted for it were all motivated by animus. Verrilli said no, that they could have voted for it due to a "lack of careful reflection," but that the law discriminates no matter why it was passed. Roberts also objected to Attorney Roberta Kaplan's characterization of gay people as a discriminated-against, minority group that lacks political power. "As far as I can tell, political figures are falling over themselves to endorse your case," Roberts said.

But Roberts did seem concerned by the federalist argument. Kennedy joined with his conservative colleagues Roberts and Justice Samuel Alito in asking tough questions about whether the federal government was overreaching with the statute. Kennedy said DOMA did not seem to recognize states's "historical" responsibility for marriage and said he thinks the central question of the case is whether the federal government has the authority to regulate marriage. Both attorneys arguing against DOMA refused to make a federalist argument against the law, however, instead insisting it was a discrimination case.

Before even getting to the merits, the justices spent nearly an hour grappling with whether they should decide the case at all because of procedural issues. They appointed Harvard professor Vicki Jackson to make the case that House Republicans do not have the legal right, or standing, to appeal the lower court's decision. Many justices were also critical of the Obama administration's decision to stop defending the law in court while still enforcing it. Chief Justice John Roberts appeared to have serious doubts about the case's procedural issues, repeatedly saying that it is "unprecedented" for the U.S. government to appeal a case even though they do not disagree with the lower court's ruling.

Both historic gay marriage cases before the court this term have been dogged by procedural concerns, as both were left orphaned by public officials who no longer wanted to defend them. On Tuesday, Kennedy wondered whether they should have agreed to hear the Proposition 8 case at all, while other justices suggested they were skeptical that supporters of Proposition 8 had standing to appeal the case once California officials decided to drop it. It's possible that neither case could end with a decision. In DOMA, that means the lower court's decision would stand and DOMA would be illegal in the Third Circuit. In the Proposition 8 case, gay marriage would most likely become legal in California if the justices throw it out on standing or do not reach a majority.

A group from Alabama prays in front of the Supreme Court in Washington, Wednesday, March 27, 2013, before the court's hearing on the Defense of Marriage Act (DOMA). In the second of back-to-back gay ... more? A group from Alabama prays in front of the Supreme Court in Washington, Wednesday, March 27, 2013, before the court's hearing on the Defense of Marriage Act (DOMA). In the second of back-to-back gay marriage case, the Supreme Court is turning to a constitutional challenge to the law that prevents legally married gay Americans from collecting federal benefits generally available to straight married couples. (AP Photo/Carolyn Kaster) less? ?

Source: http://news.yahoo.com/blogs/ticket/conservative-justices-stress-federal-overreach-gay-marriage-case-163526050--politics.html

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