5 Justices Express Doubt About Defense Of Marriage Act

On Wednesday, several Supreme Court justices voiced strong skepticism about the constitutionality of DOMA. That's the law that bars same-sex couples legally married under state law from receiving the same federal benefits as married heterosexual couples.

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The federal Defense of Marriage Act, known as DOMA, appears to be in jeopardy after having its day in court. Five justices expressed doubt about the constitutionality of the law during yesterday's Supreme Court arguments. Nine states and the District of Columbia have legalized same-sex unions, but DOMA doesn't recognize those marriages. It bars federal benefits - everything from Social Security survivor's payments to tax benefits - for gay couples who are legally married under state law. NPR legal affairs correspondent Nina Totenberg has our report.

NINA TOTENBERG, BYLINE: DOMA was challenged by Edith Windsor, a New York widow who was required to pay $363,000 in federal estate taxes that she would not have been required to pay if her spouse had been a man instead of a woman. Defending DOMA on behalf of the House Republican leadership, lawyer Paul Clement took a barrage of incoming questions about his contention that the reason Congress enacted the law was to ensure uniformity.

PAUL CLEMENT: We want to treat the same-sex couple in New York the same way as the committed same-sex couple in Oklahoma and treat them the same.

TOTENBERG: But the court's four liberal justices weren't buying that argument. Justice Ginsburg.

JUSTICE RUTH BADER GINSBURG: You're saying, no, state said two kinds of marriages: the full marriage and then this sort of skim-milk marriage.

TOTENBERG: Justice Kagan put it somewhat differently, suggesting Congress' motive in enacting DOMA was not as benign as Clement maintained.

JUSTICE ELENA KAGAN: Do we really think that Congress was doing this for uniformity reasons? Or do we think that Congress's judgment was infected by dislike, by fear, by animus and so forth?

TOTENBERG: Justice Kennedy, however, seemed uninterested in the equality argument and instead focused on the fact that DOMA breaks with the traditional federal deference to state definitions of marriage.

JUSTICE ANTHONY KENNEDY: And the question is whether or not the federal government, under our federalism scheme, has the authority to regulate marriage.

TOTENBERG: Representing widow Windsor, lawyer Roberta Kaplan argued that DOMA treats legally married gay couples as if they're not married at all. Questioned by Justice Breyer, she rejected the argument that Congress, by enacting a uniform rule, was trying to stay out of the controversy over gay marriage.

ROBERTA KAPLAN: Congress did not stay out of it. It's undermining the policy decisions made by those states that have permitted gay couples to marry. You're not promoting caution. You're putting a stop button on it, and you're having discrimination, for the first time in our country's history, against a class of married couples.

TOTENBERG: The Obama administration took a highly unusual position in this case, refusing to defend a federal law in court. But the president decided to continue enforcing the law, as long as it remained on the books. Chief Justice Roberts harrumphed about what he perceived as a lack of presidential guts.

CHIEF JUSTICE JOHN ROBERTS: I don't see why he doesn't have the courage of his convictions rather than saying, oh, we'll wait for the Supreme Court to tell us we have no choice.

TOTENBERG: But representing the administration in the Supreme Court yesterday, Solicitor General Donald Verrilli said the president's view is that it's up to the courts to strike down a law that violates the Constitution's guarantee to equal protection of the law.

DONALD VERRILLI: I think it's time for the court to recognize that this discrimination - excluding lawfully married gay and lesbian couples for federal benefits - cannot be reconciled with our fundamental commitment to equal treatment under law.

TOTENBERG: The chief justice, however, suggested that those supporting gay rights have so much power that they should be able to repeal DOMA without seeking help from the courts. Of course, even people with power have rights, as Roberts has observed in other contexts. And even if Roberts doesn't agree, it seemed yesterday that five justices may well think that Congress overstepped its authority in enacting DOMA. Nina Totenberg, NPR News, Washington.

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