Supreme Court Raises Concerns About Gay Marriage Case

5:51 PM, Mar 27, 2013   |    comments
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By Richard Wolf and Kevin Johnson, USA TODAY

WASHINGTON -- The Supreme Court turned Wednesday from the issue of banning same-sex marriage to whether the federal government can deny benefits to those already married, questioning for the second consecutive day whether proponents of traditional unions have authority to bring their case to the nation's highest court.

At issue is the Defense of Marriage Act, a 1996 law passed overwhelmingly by Congress and signed by President Clinton that defines marriage as between a man and a woman. At the time, no states had legalized same-sex marriage, but now nine states and the District of Columbia have done so -- and legally married gay couples are being denied federal spousal benefits.

Lawyers on both sides of the issue faced pointed questioning Wednesday from nearly the entire panel of justices who took issue with a range of matters, from the federal government's decision to no longer defend the law -- declared unconstitutional in lower federal courts -- to the authority of a congressional panel to take up the law's defense.

"You are asking us to do something that we have never done before," Chief Justice John Roberts told U.S. Deputy Solicitor General Sri Srinivasan, referring to the government's decision not to defend the law though it is continuing to enforce it. "It is totally unprecedented."

Citing what he described as a "new regime" at the Obama Justice Department, Justice Antonin Scalia said that there was "no rational argument" for the government's decision not to defend the existing law.

"I don't want these cases to come before this court all the time," Scalia said, suggesting that the decisions on whether to defend or enforce existing law were part of a "new world."

If the Obama administration had decided that the marriage law was unconstitutional, Roberts asked at one point, "Why doesn't he have the courage of his convictions" and simply not enforce it?

Paul Clement, representing Republican House leaders who are defending the law, faced equally sharp questions about the congressional group's standing to intervene.

"The House is the proper authority to defend (the law)," Clement told the justices.

The questions on the court's authority in the matter were debated for nearly an hour before the two sides moved to the merits of the case. It's possible the justices ultimately will sidestep a far-reaching decision when they issue their ruling, most likely in late June.

The case before the court involves Edith Windsor, an 83-year-old New York widow who married her longtime partner, Thea Spyer, in 2007. When Spyer died in 2009, Windsor was socked with a $363,000 estate tax bill that she would have avoided if Thea had been Theo, because heterosexual spouses can transfer wealth tax-free.

Now in failing health but a hero within the gay rights community, Windsor came to court Wednesday to hear her lawyer present her case. And not only her lawyer - the federal government also takes her side, which is both a benefit and a potential curse.

On Tuesday the court debated California's Proposition 8, a ballot initiative that banned gay marriage in the state. The justices could have avoided taking the Proposition 8 case, but they were forced to tackle DOMA because it had been declared unconstitutional at the lower court level. They chose from among several overlapping cases, including challenges to the law from New England, New York and California.

The plaintiffs in those cases - married couples, widows and widowers in states where gay marriage is or previously was legal - are seeking the same federal benefits accorded opposite-sex couples, from joint tax returns to survivor benefits.

The Defense of Marriage Act has two main sections, only one of which - defining marriage in federal laws as between a man and a woman - is being contested. Because of it, benefits and programs enjoyed by opposite-sex couples aren't available to gays and lesbians under federal employment, health, tax and other laws. The other provision shields states from having to recognize gay marriages from other states.

Attorney General Eric Holder announced in 2011 that the Obama administration considered DOMA unconstitutional and no longer would defend it in court. Into the breach stepped House Republicans, who argued - to no avail in lower courts - that the law saves needed federal resources and ensures they are distributed equally among the states.

Expanded Coverage at

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