From NPR News, this is ALL THINGS CONSIDERED. I'm Audie Cornish.


And I'm Robert Siegel.

Same-sex couples who are legally married had reason to be optimistic today. That's after the Supreme Court heard arguments debating the 1996 Defense of Marriage Act, known as DOMA. Nine states in the District of Columbia have legalized gay marriage. But DOMA bars federal benefits for married gay couples even though those benefits are automatically given to heterosexual couples. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: The case was brought by Edith Windsor, whose marriage to Thea Spyer was legal in New York. But when Spyer died, Windsor had to pay $363,000 in federal estate taxes that she would not have had to pay if she'd been married to a man. Windsor won in the lower courts, but there was a procedural twist.

The Obama administration, in a rare move, sided with Windsor and agreed that the federal law is unconstitutional. But it continued to enforce the law and appealed to the Supreme Court to rule on the issue. At the same time, the House Republican leadership intervened in the case to defend the law. All of this produced a dilemma for the Supreme Court.

In the first hour of argument today the question was did the House have any right to defend the law? And if not, was there an actual disagreement between two parties that the courts should resolve? Chief Justice Roberts harrumphed at President Obama's decision to enforce the law while at the same time refusing to defend it in court.

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 till the Supreme Court tells us we have no choice.

TOTENBERG: Several justices asked what authority there was for the House to take over the function of defending the law. Justice Kennedy: We could have the House on one side and the Senate on the other. Justice Alito: Why only one house when it takes both houses to pass a law? The procedural back-and-forth finally prompted this from Justice Kennedy.

JUSTICE ANTHONY KENNEDY: That does give you intellectual whiplash. I'm going to have to think about that.

TOTENBERG: But when the court moved on to the question of whether DOMA is constitutional, Kennedy repeatedly expressed the view that DOMA, by not deferring to the state definition of marriage, is inappropriately stepping on the state's toes.

KENNEDY: When it has 1,100 laws - which, in our society means that the federal government is intertwined with the citizens' day-to-day life - you are at real risk of running in conflict with what has always been thought to be the essence of the state police power, which is to regulate marriage, divorce, custody.

TOTENBERG: Not so, said lawyer Paul Clement on behalf of the House of Representatives. He contended that Congress' only purpose was 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: Clement said that when Congress enacted DOMA in 1996 it was reacting to the possibility that Hawaii would become the first state to legalize same-sex marriage.

CLEMENT: And what Congress says is, wait a minute, let's take a timeout here. This is a redefinition of an age-old institution. Let's take a more cautious approach where every sovereign gets to do this for themselves.

TOTENBERG: Justice Sotomayor didn't seem to buy that argument.

JUSTICE SONIA SOTOMAYOR: So they can create a class they don't like - here, homosexuals - and they can create that class and decide benefits on that basis when they themselves have no interest in the actual institution of marriage as marriage. The states control that.

TOTENBERG: Justice Ginsburg reiterated Justice Kennedy's observation that with 1,100 federal laws dealing with married couples, the effect of DOMA is pervasive.

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

TOTENBERG: Ginsburg wondered as well whether if Congress can regulate marriage, it can also regulate divorce. Justice Kagan noted that, historically, the federal government has always deferred to the states in their definition of marriage.

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

TOTENBERG: Clement maintained that the federal government has gotten into defining marriage, for example, insisting on the prohibition of polygamy in the states.

CLEMENT: So where there have been needs in the past to get involved, the federal government has gotten involved.

SOTOMAYOR: Well, is what happened in 1996 - and I'm going to quote from the House report here - is that Congress decided to reflect and honor a collective moral judgment and to express moral disapproval of homosexuality.

TOTENBERG: After lawyer Clement sat down, Solicitor General Donald Verrilli told the justices that DOMA is quite simply discrimination.

DONALD VERRILLI: What Section 3 does is exclude from an array of federal benefits lawfully married couples. That means that the spouse of a soldier killed in the line of duty cannot receive the dignity and solace of an official notification of next of kin.

TOTENBERG: Justice Kennedy, however, seemed relatively uninterested in the discrimination argument and more interested in the question of whether the federal government can interfere with states' rights to regulate marriage.

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

TOTENBERG: Verrilli said no it can't, but he returned repeatedly to the argument that DOMA is an unconstitutional denial of the equal protection of the law.

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

TOTENBERG: Verrilli dodged the question of whether similar laws in most states would be unconstitutional too. Following Verrilli to the lectern was lawyer Roberta Kaplan, representing Edith Windsor, the New York widow who brought the challenge to DOMA. She told the justices that many thousands of same-sex married couples are being treated by the federal government as if they were not married. Justice Breyer asked her about the argument that Congress needed to make a uniform rule.

JUSTICE STEPHEN BREYER: There has been this uniform one man-one woman rule for several hundred years or whatever, and there's a revolution going on in the states. We either adopt the resolution - the revolution or push it along a little or we stay out of it.

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 on it, and you - having discrimination, for the first time in our country's history, against the class of married couples.

TOTENBERG: Chief Justice Roberts repeatedly disputed the notion that Congress was acting with a hostile, discriminatory motive.

ROBERTS: Eighty-four senators based their vote on moral disapproval of gay people?

KAPLAN: No. I think what's true, Mr. Chief Justice, is that times can blind and that back in 1996, people did not have the understanding that they have today, that there is no distinction, there is no constitutionally permissible distinction.

ROBERTS: Well, does that mean - times can blind - does that mean they did not base their votes on moral disapproval?

KAPLAN: No. Some clearly did. I think it was based on an understanding that gay - that incorrect understanding that gay couples were fundamentally different than straight couples, an understanding that I don't think exists today.

TOTENBERG: Since then, she said, there's been a sea change in public understanding. In view of that, Chief Justice Roberts seemed to suggest there is no reason for the court to step in.

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

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

ROBERTS: Really?


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

TOTENBERG: By the end of the day, it looked very much as though the court was falling into its frequent 4-to-4 liberal-conservative split, with Justice Kennedy the fifth and deciding vote. And assuming that the court actually decides the case and doesn't get derailed by the procedural issues, it looked very much as though DOMA would not survive. Nina Totenberg, NPR News, Washington.

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