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Anti-gay marriage law gets chilly reception from key Supreme Court justice (+video)

Supreme Court Justice Anthony Kennedy is seen as a potential swing vote on DOMA, a gay marriage law that bars federal benefits to same-sex couples. He repeatedly raised concerns in oral arguments Wednesday.

By Staff writer / March 27, 2013

Plaintiff Edith Windsor of New York waves to supporters in front of the Supreme Court in Washington Wednesday after the court heard arguments on her Defense of Marriage Act (DOMA) case.

Carolyn Kaster/AP



The US Supreme Court took up its second major gay-rights case in two days on Wednesday when it heard argument in a potential landmark case testing whether the 1996 Defense of Marriage Act violates the equal protection rights of gay and lesbian married couples.

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The Supreme Court is hearing a challenge to the 1996 Defense of Marriage Act, deciding whether the federal government can deny benefits to same-sex couples. As Jan Crawford reports, a majority of the justices are indicating the law is in jeopardy.

During nearly two hours of argument, the justices appeared to divide along traditional liberal-conservative lines, with Justice Anthony Kennedy residing – once again – at the center of the nine-member court.

If Justice Kennedy’s comments and questions during the session are an accurate indication, the federal statute may well be struck down.

Kennedy repeatedly raised concerns that the federal statute was in conflict with the traditional power of the states to regulate marriage.

The justice took exception to a comment by a lawyer defending the statute that all the Defense of Marriage Act (DOMA) did was define marriage for purposes of federal law.

Kennedy said the definition applied in 1,100 different contexts, which meant that federal influence was “intertwined with the citizens’ day-to-day life.”

That, he said, put the federal government at a “real risk of running in conflict” with core powers retained by the states, including the power to regulate marriage, divorce, and child custody.

The lawyer, former Solicitor General Paul Clement, said Congress was simply seeking uniformity in the provision of federal benefits, not to regulate marriage at the state level.

Kennedy was unconvinced. “The question is whether or not the federal government, under our federalism scheme, has the authority to regulate marriage,” he said.

At various points during the argument, Justices Ruth Bader Ginsburg and Elena Kagan, both members of the court’s liberal wing, offered comments in support of Kennedy’s concerns.

Chief Justice John Roberts also appeared to be trying to frame an argument about federal power to draw Kennedy in a more conservative direction.  

It is still too early to know with certainty which way Kennedy will ultimately go, and whether his expected swing vote will align with the high court’s liberals or conservatives.

But it is clear from his comments that he is deeply concerned about the impact of the federal statute.

What DOMA does

DOMA restricts the receipt of federal marriage benefits to opposite-sex couples by defining marriage as a union between one man and one woman.

By using that traditional definition of marriage, same-sex spouses who are legally married in states permitting gay marriage are blocked from receiving the same 1,100 benefits available to opposite-sex spouses.

Unlike every heterosexual married couple in the United States, married homosexuals cannot file joint tax returns, receive spousal Social Security benefits, or qualify for family health insurance for married federal employees.

“DOMA was not enacted for any purpose of uniformity, administration, caution, pausing, any of that,” US Solicitor General Donald Verrilli told the court.

“It was enacted to exclude same-sex, lawfully married couples from federal benefit regimes based on a conclusion that was driven by moral disapproval,” he said.

The solicitor general added: “I think it’s time for this court to recognize that this discrimination, excluding lawfully married gay and lesbian couples from federal benefits, cannot be reconciled with our fundamental commitment to equal treatment under law.”

Historic two days

Coming on the heels of Tuesday’s oral argument on California’s Proposition 8 ban on same-sex marriage, the high court’s sessions over the past two days mark a historic reexamination of gay rights in America.


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