Majority of justices question constitutionality of DOMA

By Robert Barnes and Sandhya Somashekhar

March 27, 2:41 PM

A majority of the Supreme Court on Wednesday questioned the constitutionality of the 1996 Defense of Marriage Act and whether it created unequal classes of married couples by denying federal benefits to legally wed same-sex couples.

Justice Anthony M. Kennedy, thought likely to be the deciding vote as the court held its second day of hearings on same-sex marriage, told the advocate defending the law that it did not really promote “uniformity” in federal law.

Kennedy acknowledged that there were 1,100 references to marriage in the federal code, and that the definition of who is married is “intertwined with daily life.” He questioned whether the federal government may impose its own view of marriage, which has “always thought to be” the domain of the state.

Nine states, including Maryland, plus the District of Columbia allow same-sex couples to marry.

Justice Ruth Bader Ginsburg said that if those couples don’t receive federal benefits such as tax advantages, Social Security benefits and other recognition, “what kind of marriage is it?’

She said it created two classes: real marriage and “skim-milk marriage.”

Paul D. Clement, representing Republican House leaders who are defending the law, said Congress was not discriminating but simply staying out of experiments by the states on same-sex marriage.

The law does not punish states that allow such unions, he said, but simply lets the federal government decide how it wants to allocate its benefits.

But before the justices decide the merits of the DOMA challenge, they must decide whether the case is properly before them. And conservative justices expressed doubt about the way the issue arrived at the court.

The Obama administration has said that it will not defend the law at issue Wednesday, known as DOMA, and lower courts have said it is unconstitutional to deny federal benefits to same-sex couples who are legally married in the states where they live while offering the same benefits to opposite-sex married couples. At the same time, however, the administration has said it will continue to enforce the law until the Supreme Court rules.

During Wednesday’s oral arguments, Justice Antonin Scalia remarked on that contradiction, saying it was a “new world” when the attorney general could decide a law is unconstitutional but still enforce it. Kennedy also called that a “questionable practice.”

Those technical questions dominated the first part of Wednesday’s oral arguments. A court-appointed attorney arguing that a group of Republican leaders in the U.S. House of Representatives has no standing to defend DOMA in court, and that the Obama administration was not a viable party because it agrees with the lower courts

Scalia and Chief Justice John G. Roberts Jr. were the most critical of the approach the Obama administration has taken about the law.

Scalia said the administration’s agreement with the lower court meant it was making an extraordinary request to have the Supreme Court consider it.

“You’re asking us to do something we’ve never done before,” Scalia said.