Marcos German Domingues stands with rainbow flags outside the Supreme Court with hundreds of other marriage equality supporters and protesters.
In the second day of arguments about gay marriage, the Supreme Court wrestled with the Defense of Marriage Act. The central question is whether the federal government has the authority to define marriage separately from states for the purpose of federal benefits and, if so, whether defining it to the exclusion of gay couples violates the Constitution’s requirement of equal protection under law. Many court watchers opined that most justices seemed inclined to rule in favor of gay rights.
Here are the most revealing moments from the debate:
1. Justice Anthony M. Kennedy questioned whether the federal government is overstepping its authority by defining marriage: “When it has 1,100 laws, which in our society means that the federal government is intertwined with the citizens’ day-to-day life, you are at — at real risk of running in conflict with what has always been thought to be the essence of the state police power, which is to regulate marriage, divorce, custody.”
2. Chief Justice John G. Roberts Jr. has clearly been reading the news of late, a point he referenced in his questioning of attorney Roberta A. Kaplan on the power of the pro-gay-marriage lobby: “You don’t doubt that the lobby supporting the enactment of same-sex marriage laws in different states is politically powerful, do you? ... As far as I can tell, political figures are falling over themselves to endorse your side of the case.” Kaplan: “The fact of the matter is, Mr. Chief Justice, is that no other group in recent history has been subjected to popular referenda to take away rights that have already been given or exclude those rights, the way gay people have. ... Until 1990 gay people were not allowed to enter this country. ... I think gay people are far weaker than the women were at the time of Frontiero.” (Frontiero v. Richardson is a 1973 equal protection case.)
3. Justice Ruth Bader Ginsburg compared marriage to milk in her riff on the extensive federal benefits denied to gay couples under DOMA: “They touch every aspect of life. Your partner is sick. Social Security. I mean, it’s pervasive. It’s not as though, well, there’s this little federal sphere and it’s only a tax question. It’s ... as Justice Kennedy said, 1,100 statutes and it affects every area of life. And so he was really diminishing what the state has said is marriage. You’re saying, ‘No, state said two kinds of marriage; the full marriage, and then this sort of skim-milk marriage.’”