The Supreme Court spent a second day hearing arguments about another potential ruling on same-sex marriage, as it considers the constitutionality of the Defense of Marriage Act, or DOMA. Early reports indicate a tense court room and more attention on Justice Anthony Kennedy.
The DOMA case doesn’t involve a basic question about an equal right to marriage, since the couples who challenged that law are already legally married in their states.
The hearings concluded early Wednesday afternoon. Listen to the official audio from today’s oral arguments here (audio will be available Wednesday afternoon).
Early reports from The Wall Street Journal indicated that the court’s conservative justices were critical of the Obama administration’s refusal to defend DOMA in court.
In one exchange, Chief Justice John Roberts said the Obama administration should have the “courage” to defend DOMA, rather than let the Supreme Court decide who has the ability to defend the law.
But Justice Kennedy, a key swing vote on the court, also voiced concerns about the ability of the federal government to define marriages for the states.
SCOTUSblog publisher Tom Goldstein said on his Twitter account that he believed after seeing the arguments that there was an 80 percent chance the court would strike down DOMA.
The question at hand is if Congress has the constitutional power to deny married same-sex couples benefits given to opposite-sex couples under about 1,100 federal programs or services.
DOMA was passed by Congress in 1996 after fears that Hawaii’s Supreme Court was considering the constitutionality of same-sex marriages. The federal benefits denied by DOMA to married same-sex couples include the right to file a joint tax return and to obtain a Social Security death benefit.
The case is United States v. Windsor. Edith Windsor is contesting a requirement that she pay $363,000 in federal estate taxes inherited from her late same-sex married partner, which she wouldn’t have been obligated to pay if she were married to a man.
On Tuesday, the court heard arguments about Proposition 8, a law in California barring same-sex marriages that was later overturned by two other courts.
Like Proposition 8, the justices were expected to hear arguments in the DOMA case about whether the case had legal standing and could even be considered by the high court.
The Obama administration decided not to defend DOMA in court in 2011, and instead several Republican congressional leaders pursued the defense.
Under the Constitution’s Article III, the court must have before it a live “case or controversy,” with a party on each side with a direct, not a theoretical, interest in the outcome.
In the DOMA case, Republican leaders have challenged the right of the federal government to appeal, and the federal government has challenged the GOP leaders’ right to make a defense of DOMA.
What’s unknown at this point is if the Supreme Court, when it issues rulings in late June, will take any stance on the same-sex marriage issue, aside from agreeing to hear the DOMA and Proposition 8 cases.
Some observers of the Proposition 8 hearings on Tuesday believed the court could say in June that the Prop 8 case didn’t have standing, and it would be invalidated or returned to a lower court.
But others believe the court could have a logic that is shared between the Prop 8 and DOMA cases.
Still others point back to last year’s instant analysis of the Supreme Court’s hearings on the Affordable Care Act. In March 2012, pundits were forecasting the ACA would be struck down by the justices, based on their line of questioning in the hearings. But in June 2012, most of the ACA stood intact after the court’s ruling. Two of the attorneys in court on Wednesday for the DOMA case also argued the ACA case last year: U.S. Solicitor General Don Verrilli Jr. and former Solicitor General Paul Clement.
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