By considering a challenge to California's Proposition 8 ban on gay marriage Tuesday, the Supreme Court today heard arguments in a case seeking to overturn the 1996 law signed by President Bill Clinton. That law defined marriage as heterosexual and prevented gay couples from receiving federal marriage benefits. The Supreme Court could issue a landmark ruling on gay marriage by the end of June.
A majority of the U.S. Supreme Court's justices expressed skepticism today about the federal law defining marriage as between one man and one woman. This is their second straight day on gay marriage issues.
Justice Anthony Kennedy, viewed as a key swing vote, appeared critical of the federal government's declining to recognize marriages that states have made legal.
Kennedy cited concerns about federalism, saying there was a "real risk" of the federal law running into conflict with a state's power.
"The question is," Kennedy asked, "whether or not the federal government … has the authority to regulate marriage."
Then Justice Ruth Bader Ginsburg asked about a marriage that is recognized by the state but not the federal government.
"One might ask what kind of marriage is that?" Later, Ginsburg said that one marriage is considered regular and the other "skim milk."
In court, Paul Clement defended DOMA on behalf of the Bipartisan Legal Defense Group BLAG led by House Republicans.
He cited that one reason DOMA was passed was for "uniformity," so that the federal definition of marriage would be the same throughout the states.
However, Justice Elena Kagan attacked this position. Reading from a 1996 committee report, she cited moral disapproval. That suggests, she said, that Congress might have been motivated partially by animus.
The DOMA challenge was brought by Edie Windsor, an 83-year-old woman from New York who married Thea Clara Spyer in 2007 in Toronto. After Spyer's death in 2009, Windsor was denied an exemption of federal estate taxes amounting to $360,000. They had been in a relationship for 40 years.
DOMA has enraged gay-rights activists, some of whom have harbored resentment at Clinton for signing it into law in the first place.
When President Obama took office, activists urged the administration to oppose DOMA. In February 2011, they got their wish, as Attorney General Eric Holder announced in a letter to Congress that the Department of Justice would no longer defend DOMA in federal court.
The Obama administration has argued that DOMA should be overturned, while House Republicans have stepped in to defend it, tasking the Bipartisan Legal Advisory Group (BLA