So is D.O.M.A DOOMED FOR GOOD, OR NOT?

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So is D.O.M.A DOOMED?

The Supreme Court appeared ready on Wednesday to strike down a central part of a federal law that defines marriage as the union of a man and a woman, as a majority of the justices expressed reservations about the Defense of Marriage Act.

On the second day of intense arguments over the volatile issue of same-sex marriage, Justice Anthony M. Kennedy, who most likely holds the decisive vote, returned again and again to the theme that deciding who is married is a matter for the states. The federal government, he said, should respect “the historic commitment of marriage, and of questions of the rights of children, to the states.”

That suggests that he is prepared to vote with the court’s four liberal members to strike down the part of the 1996 law that recognizes only the marriages of opposite-sex couples for more than 1,000 federal laws and programs. Such a ruling would deliver federal benefits to married same-sex couples in the nine states, and the District of Columbia, that allow such unions.

If the 1996 law stands, Justice Kennedy said, “you are at real risk with running in conflict with what has always been thought to be the essence” of state power, which he said was to regulate marriage, divorce and custody.

All four members of the court’s liberal wing questioned the constitutionality of the law, though they largely focused on equal protection principles rather than on the limits of federal power.

Justice Ruth Bader Ginsburg, for instance, said the law effectively created “two kinds of marriage: the full marriage, and then this sort of skim milk marriage.”

Paul D. Clement, who served as solicitor general under President George W. Bush and is defending the law on behalf of House Republicans, argued that the federal government was entitled to use a uniform definition of marriage across the nation.

Mr. Clement said countless laws over time had been enacted with the traditional definition of marriage in mind. When Congress approved the 1996 law, he said, it was worried that if one state extended the definition to include same-sex couples, those laws would effectively be changed.

“What Congress says is, ‘Wait a minute,’ ” Mr. Clement said of what had happened in 1996. “ ‘Let’s take a timeout here. This is a redefinition of an age-old institution.’ ”

Justice Elena Kagan said there was something else at work.

“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?” she asked.

She read a passage from the House record at the time that said the law had been animated by a “collective moral judgment” to “express moral disapproval of homosexuality.”

Mr. Clement responded: “Of course, the House report says that. And if that’s enough to invalidate the statute, then you should invalidate the statute. But that has never been your approach.”

“Just because a couple legislators may have had an improper motive” is irrelevant, Mr. Clement said, adding that the usual question for the court was simply whether the challenged law was supported by a rational justification.

Solicitor General Donald B. Verrilli Jr. said the 1996 law is deeply unfair and means, for instance, “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.”

The arguments came a day after the court heard a challenge to California’s Proposition 8, which bans same-sex marriages. That argument was murky and muddled, and many of the justices’ questions suggested they were looking for a way to duck the central issue.

By comparison, Wednesday’s case was modest, and the arguments were clear. The court heard a preliminary 50-minute session on whether it had jurisdiction to hear the case, but those issues did not seem to threaten to send the case off the rails.

The court appointed Vicki C. Jackson, a law professor at Harvard, to argue a position not fully supported by any party: that the case’s odd procedural posture meant the court lacks jurisdiction.

After the appeals court in New York struck down the challenged part of the law, which was the outcome the administration had urged, the Justice Department nonetheless appealed, saying the issue warranted an authoritative decision from the Supreme Court.

The problem, Professor Jackson said, is that both sides want the same result. “There is no adversity,” she said. “They’re in agreement.”

“This is totally unprecedented,” Chief Justice John G. Roberts Jr. said of the way the case had reached the court. “You’re asking us to do something we’ve never done before.”

“It’s unusual,” acknowledged Sri Srinivasan, a deputy solicitor general.

“No, it’s not just unusual,” Chief Justice Roberts said. “It’s totally unprecedented.”

He expressed irritation that the case was before the court, saying President Obama’s approach — to enforce the law but not defend it — was a contradiction.

“I don’t see why he doesn’t have the courage of his convictions,” the chief justice said. He said Mr. Obama should have stopped enforcing a statute he viewed as unconstitutional “rather than saying, ‘Oh, we’ll wait till the Supreme Court tells us we have no choice.’ ”

The White House took umbrage at the remark and said the president was upholding his constitutional duty to execute the laws until the Supreme Court rules otherwise. “There is a responsibility that the administration has to enforce laws that are on the books,” said Josh Earnest, a deputy White House press secretary. “And we’ll do that even for laws that we disagree with, including the Defense of Marriage Act.”

There were also questions about whether House Republicans had standing to defend the law. “Obviously nobody’s suggesting, at least in the legislative branch, that this is a best practices situation,” Mr. Clement said.

But there did not seem to be a consensus on the bench to avoid deciding the constitutionality of the law.

Dismissing the case for lack of standing would probably have the effect of letting stand the appeals court ruling. But while some of the justices expressed skepticism that the court should be deciding the matter, Justice Kennedy suggested there was an issue legitimately before them because “it seems to me there’s injury here.”

In addition to those allowed to wed in the nine states and the District of Columbia, about 18,000 gay and lesbian couples married in California before voters there overturned a state Supreme Court decision that had established that right.

If the United States Supreme Court strikes down the challenged part of the 1996 law, same-sex spouses in those places would start to receive federal benefits. But such a decision would not require any other state to allow same-sex marriage. A ruling reaching that larger question would have to come from the case argued on Tuesday, Hollingsworth v. Perry, No. 12-144.

Wednesday’s case, United States v. Windsor, No. 12-307, concerns two New York City women, Edith Windsor and Thea Clara Spyer, who married in 2007 in Canada. Ms. Spyer died in 2009, and Ms. Windsor, who was in the courtroom on Wednesday, inherited her property.

Roberta Kaplan, a lawyer for Ms. Windsor, told the justices that the 1996 law had produced “discrimination for the first time in our country’s history against a class of married couples.”

The law did not allow the Internal Revenue Service to treat Ms. Windsor as a surviving spouse, and she faced a tax bill of about $360,000 that a spouse in an opposite-sex marriage would not have had to pay.

Ms. Windsor sued, and in October the United States Court of Appeals for the Second Circuit, in New York, struck down the contested part of 1996 law. The decision was the second from a federal appeals court to do so, joining one in May from a court in Boston. 

Times are a changing and Look what TIME magazine did already! 

#equalityrules!