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co m/po litics/2013/03/27/supreme-co urt-to -hear-arguments-o ver-challenge-to -federal-law-in-seco nd-gay/

Supreme Court justices raise doubts about federal marriage law

A majority of Supreme Court justices voiced skepticism Wednesday about the legitimacy of a f ederal provision that prevents married gay couples f rom receiving a range of f ederal benef its, raising questions about whether the Def ense of Marriage Act will stand. T he court concluded arguments early Wednesday af ternoon on the challenge to the Def ense of Marriage Act provision that def ines marriage as between a man and a woman. T he hearing was the second in back-toback gay marriage cases bef ore the court this week, both of which have attracted intense public interest. In the two-hour hearing Wednesday, Justice Anthony Kennedy, of ten the decisive vote in close cases, joined the f our more liberal justices in raising questions about the provision of the f ederal Def ense of Marriage Act that is being challenged. Kennedy said the law appears to intrude on the power of states that have chosen to recognize same-sex marriages. Other justices said the law creates what Justice Ruth Bader Ginsburg called two classes of marriage, f ull marriage and "skim-milk marriage." Click to listen to the oral arguments. T he motivation behind the 1996 f ederal law, passed by large majorities in Congress and signed by President Bill Clinton, was questioned repeatedly by Justice Elena Kagan. She read f rom a House of Representatives report explaining that the reason f or the law was "to express moral disapproval of homosexuality." T he quote produced an audible reaction in the courtroom. Paul Clement, representing the House Republican leadership in def ending the law, said the more relevant question is whether Congress had "any rational basis f or the statute." He supplied one, the f ederal government's interest in treating same-sex couples the same no matter where they live. Clement said the government does not want military f amilies "to resist transf er f rom West Point to Fort Sill because they're going to lose their benef its." T he U.S. Military Academy at West Point is in New York, where same-sex marriage is legal, and Fort Sill is in Oklahoma, where gay marriages are not legal. T he law af f ects a range of benef its available to married couples, including tax breaks, survivor benef its and health insurance f or spouses of f ederal employees. It also is possible the court could dismiss the case f or procedural reasons, though that prospect seemed less likely than it did in Tuesday's argument over gay marriage in Calif ornia. Marital status is relevant in more than 1,100 f ederal laws that include estate taxes, Social Security survivor benef its and health benef its f or f ederal employees. Lawsuits around the country have led f our f ederal district courts and two appeals courts to strike down the law's Section 3, which def ines marriage. In 2011, the Obama administration abandoned its def ense of the law but continues to enf orce it. House Republicans are now def ending DOMA in the courts. T he justices chose f or their review the case of Edith Windsor, 83, of New York, who sued to challenge a $363,000 f ederal estate tax bill af ter her partner of 44 years died in 2009.

Windsor, who goes by Edie, married T hea Spyer in 2007 in Canada af ter doctors told them that Spyer would not live much longer. She suf f ered f rom multiple sclerosis f or many years. Spyer lef t everything she had to Windsor. T here is no dispute that if Windsor had been married to a man, her estate tax bill would have been zero. T he U.S. 2nd Circuit Court of Appeals in New York agreed with a district judge that the provision of DOMA deprived Windsor of the constitutional guarantee of equal protection of the law. Like the Proposition 8 case f rom Calif ornia, Windsor's lawsuit could f alter on a legal technicality without a def initive ruling f rom the high court. T he House Republicans, the Obama administration and a lawyer appointed by the court were to spend part of the hearing discussing whether the House Republican leadership can def end the law in court because the administration decided not to, and whether the administration f orf eited its right to participate in the case because it changed its position and now argues that the provision is unconstitutional. If the Supreme Court f inds that it does not have the authority to hear the case, Windsor probably would still get her ref und because she won in the lower courts. But there would be no def initive decision about the law f rom the nation's highest court, and it would remain on the books. On Tuesday, the justices weighed a f undamental issue: Does the Constitution require that people be allowed to marry whom they choose, regardless of either partner's gender? T hat case involved Calif ornia's Proposition 8 ban on gay marriage. If the justices choose to rule broadly, they could overturn Prop 8 and in doing so invalidate every other restriction on gay marriage in the country. But the justices suggested Tuesday they could decide the case without issuing a ruling that ripples through all 50 states. Several justices, including some liberals who seemed open to gay marriage, raised doubts that the case was properly bef ore them. Such an outcome would almost certainly allow gay marriages to resume in Calif ornia but would have no impact elsewhere. T he justices' statement spanned the gamut. Chief Justice John Roberts said it seemed supporters of gay marriage were trying to change the meaning of the word "marriage" by including same-sex couples. Lawyers representing supporters of the Calif ornia ban known as Proposition 8 argued that the court should not override the democratic process and impose a judicial solution that would redef ine marriage in the some 40 states that do not allow same-sex couples to wed. Decisions in both cases are expected by June. Americans as a whole are divided on the issue. A Fox News poll released T hursday showed 49 percent of voters f avor legalizing gay marriage, while 46 percent oppose it. T hat marks a shif t since the question was f irst asked in 2003 -- when 32 percent said gay marriage should be legal, and 58 percent opposed it. Gay marriage has been approved in nine states -- Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, Washington -- and the District of Columbia. But 31 states have amended their constitutions to prohibit same-sex marriage. North Carolina was the most recent example last May. The Associated Press contributed to this report.