Supreme Court justices question DOMA’s range, consider effect act has in states

by
March 28, 2013

The federal government has a “powerful interest” in a single, uniform definition of marriage, even if it excludes gay unions that are legal in individual states, the lawyer defending the federal Defense of Marriage Act said Wednesday as the Supreme Court concluded two days of landmark arguments on gay marriage.

But Paul D. Clement, hired by the House of Representatives to argue for DOMA after the Obama administration refused to do so, faced often skeptical questions from the justices in nearly two hours of arguments centering on the clash between the law’s traditional definition of marriage between one man and one woman and a growing number of states that now sanction gay unions.

The justices, in particular key swing vote Justice Anthony M. Kennedy, seemed to be struggling with the impact that DOMA had in an area traditionally reserved for the states. As several justices noted, the DOMA statute affects more than 1,100 federal laws, programs, taxes and benefits that differ for married and single people.

The broad sweep of DOMA “in our society means that the federal government is intertwined with citizens’ day-to-day life,” Justice Kennedy said. This puts the federal law “at real risk of running in conflict with what was always thought to be the essence of state police power, which is to regulate marriage, divorce, custody.”

Justice Ruth Bader Ginsburg added that for the federal government to tell legally married, same-sex couples they’re ineligible to file a joint tax return, take marital deduction or have surviving-spouse Social Security benefits, “One might well ask, what kind of marriage is this?” The result, she said, would be “two kinds of marriage: the full marriage and then this sort of skim-milk marriage.”

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