Supreme Court Wrestles With Implications Of Defense Of Marriage Act

As the Supreme Court heard arguments on gay marriage for a second day on Wednesday, five justices showed uneasiness with the Defense of Marriage Act of 1996 and the limits it imposed on federal benefits for gay couples.

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In a second day of historic arguments on gay marriage, the Supreme Court wrestled with DOMA today. The Defense of Marriage Act passed in 1996 defines marriage as a union between a man and a woman for the purposes of federal law and it affects the administration of more than 1,000 federal programs, everything from Social Security and family leave to the estate tax.

The big question before the court is, what happens to same-sex couples who live in states that recognize their marriages when the federal government does not? Well, our coverage this hour begins with NPR's Carrie Johnson.

CARRIE JOHNSON, BYLINE: Again, today, the early part of the oral arguments was all about getting to the courthouse door, the issue lawyers call standing. The justices were pounding away at the threshold requirement that parties in a lawsuit have a proper legal issue to fight about. And just as in Tuesday's argument, the justices seemed uncertain they could reach the substance of the case. Here's why. Two years ago, the Obama administration announced it would no longer defend DOMA because it discriminated against same-sex couples.

Today, Chief Justice John Roberts leaned on the lawyer for the Justice Department for an explanation.

JOHN ROBERTS: This is totally unprecedented. You're asking us to do something we have never done before to reach the issue in this case.

JOHNSON: Because the administration would not defend the law, the only people fighting in court for DOMA today were Republican leaders from the U.S. House of Representative. They were represented by lawyer Paul Clement.

PAUL CLEMENT: The House's single most important prerogative, which is to pass legislation and to have that legislation, if it's going to be repealed, only be repealed through a process where the House gets to fully participate.

JOHNSON: But when he got to the substance of his argument, Clement ran into some trouble. Justice Anthony Kennedy, a likely swing voter in this week's gay rights cases, suggested the federal government was trampling on the states.

ANTHONY KENNEDY: You are at real risk of running in conflict with what is always been thought to be the essence of the state police power, which is to regulate marriage, divorce, custody.

JOHNSON: Then Justice Ruth Bader Ginsburg chimed in. She said the current system turns same-sex couples into second class citizens.

RUTH BADER GINSBURG: You are saying, no, the state says two kinds of marriages, the full marriage and then the sort of skim milk marriage.

JOHNSON: Clement said Congress simply wanted to make sure couples are treated equally across state lines, but none of the justices seemed satisfied with that. Moments later, they turned their fire on Roberta Kaplan, the lawyer arguing to invalidate DOMA. Chief Justice Roberts said he doubted same-sex couples needed any extra protection from the courts.

ROBERTS: You don't doubt that the lobby supporting the enactment of same-sex marriage laws in different states is politically powerful, do you?

ROBERTA KAPLAN: With respect to that categorization of the term, for purposes of heighted scrutiny, I would, your honor. I don't...

ROBERTS: Really?

KAPLAN: Yes.

ROBERTS: As far as I can tell, political figures are falling over themselves to endorse your side of the case.

JOHNSON: Roberts seemed to suggest the fast-changing political climate outside the courtroom was going to matter more than anything the justices decide. The key figure in today's cases, 83-year-old Edith Windsor. Windsor married her spouse, Thea Speyer, in Canada in 2007. Their union was recognized by the state of New York where they lived together for four decades.

But after Speyer died, Windsor got a rude awakening from the IRS, a tax bill for more than $360,000, one she would have avoided, Windsor said, if her spouse was a man.

EDITH WINDSOR: In the midst of my grief, I realized that the federal government was treating us as strangers and I paid a humongous estate tax.

JOHNSON: Windsor said even after so many years together, getting married was more than just legally different. She said it was magic. The court's expected to rule before summer. Carrie Johnson, NPR News, Washington.

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