Article by Melanie Nathan – Cross postings – March 27, 2013.
PHOTOS by Melanie Nathan and Cathy Kristofferson, Oblogdee©
A majority of the Supreme Court on Wednesday questioned the constitutionality of the 1996 Defense of Marriage Act and whether it created unequal classes of married couples by denying federal benefits to legally wed same-sex couples.
Justice Anthony M. Kennedy, thought likely to be the deciding vote as the court held its second day of hearings on same-sex marriage, told the advocate defending the law that it did not really promote “uniformity” in federal law.
After weeks and months of public debate and speculation about the legal fate of same-sex marriage, the second round of arguments takes place at the U.S. Supreme Court on Wednesday.
After hearing a challenge on Tuesday to California’s ban on same-sex marriage, the justices move Wednesday to the 1996 Defense of Marriage Act, known as DOMA. The law bars federal recognition and benefits for same-sex couples married in any of the states — and there are nine currently — where such unions are legal.
There are more than 1,000 federal laws that confer benefits of one sort or another on married couples — everything from tax savings to Social Security benefits, but DOMA excludes those benefits for legally married same-sex couples.
The test case involves a couple from New York, Edith Windsor and Thea Spyer, who had been together for 42 years prior to their marriage in 2007. When Spyer died, however, the federal government, acting under DOMA, required Windsor to pay $363,000 in estate taxes that she would not have owed if her spouse had been of the opposite sex. READ MORE.
Argument recap: DOMA is in trouble (FINAL UPDATE)
Final update: 2:19 pm – Analysis- SCOTUS BLOG
If the Supreme Court can find its way through a dense procedural thicket, and confront the constitutionality of the federal law that defined marriage as limited to a man and a woman, that law may be gone, after a seventeen-year existence. That was the overriding impression after just under two hours of argument Wednesday on the fate of the Defense of Marriage Act.
That would happen, it appeared, primarily because Justice Anthony M. Kennedy seemed persuaded that the federal law intruded too deeply into the power of the states to regulate marriage, and that the federal definition cannot prevail. The only barrier to such a ruling, it appeared, was the chance – an outside one, though — that the Court majority might conclude that there is no live case before it at this point.
After a sometimes bewilderingly complex first hour, discussing the Court’s power to decide the case of United States v. Windsor (12-307), the Court moved on to explore DOMA’s constitutionality. And one of the most talented lawyers appearing these days before the Court — Washington attorney Paul D. Clement — faced fervent opposition to his defense of DOMA from enough members of the Court to make the difference. He was there on behalf of the Republican leaders of the House (as majority members of the House’s Bipartisan Legal Advisory Group), defending the law because the Obama administration has stopped doing so. READ MORE
LISTEN TO THE ARGUMENT