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For gay rights activists, partial victory more likely than sweeping

U.S. Supreme Court justices heard oral arguments in a case that could overturn the Defense of Marriage Act (DOMA) for a second day on Wednesday. Potential swing vote, Justice Anthony Kennedy warned the law may infringe on states' rights to define marriage. 

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During Tuesday's arguments, Justice Antonin Scalia, a conservative, questioned whether there was sufficient data to show that children are not adversely affected if raised by same-sex couples. Likewise, Justice Samuel Alito noted the concept of gay marriage is "newer than cellphones and the Internet."

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Offering a liberal perspective, Justice Elena Kagan prompted murmurs of surprise from onlookers on Wednesday when she quoted from a U.S. House of Representatives report written less than two decades ago, at the time DOMA was enacted, that referenced "moral disapproval" of gay marriage.

'Skim milk marriage'

As attention turned to DOMA on Wednesday, Kennedy made it clear where he stood, referring to DOMA as "inconsistent" because it purports to give authority to the states to define marriage while limiting recognition of those determinations.

His states' rights concerns were echoed by two of the liberal members of the bench, Kagan and Justice Sonia Sotomayor. "What gives the federal government the right to be concerned at all about what the definition of marriage is?" Sotomayor said.

Justice Ruth Bader Ginsburg and Justice Stephen Breyer also raised concerns about the law.

Ginsburg stressed how important federal recognition is to any person who is legally married.

"It affects every area of life," she said.

Comparing marriage status with types of milk, Ginsburg said that a gay marriage endorsed by a state, but not recognized by the federal government, creates two types of marriage, "full marriage, and then this sort of skim milk marriage."

If the court rules on the states' rights issue, the justices could strike down the law without deciding the bigger question of whether DOMA violates the U.S. Constitution's guarantee of equal protection under the law.

On that issue, Kagan spoke of a "red flag" that indicates Congress passed DOMA with the intent of targeting a group that is "not everyone's favorite group in the world."

Various groups are calling for DOMA to be struck down, such as the Business Coalition for DOMA Repeal, whose members include Marriott International Inc, Aetna Inc, eBay Inc , and Thomson Reuters Corp, the corporate parent of the Reuters news agency.

Separately, several conservative justices criticized Obama and his Justice Department for not defending the marriage law in court.

Chief Justice John Roberts questioned whether Obama had "the courage of his convictions" for continuing to enforce DOMA while calling it invalid.

(Reporting by Lawrence Hurley, Joan Biskupic, David Ingram and Joseph Ax; Editing by Kevin Drawbaugh and Eric Beech)

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