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Majority of Justices Question Defense of Marriage Law

On two occasions, Roberts questioned whether 84 senators really acted with “animus” in voting for a measure that withheld benefits from gay couples, prompting a lawyer for the woman who brought the case, Edith Windsor, to argue that the lawmakers’ votes may have been a sign of the times.

“I think what is true, Mr. Chief Justice, is that times can blind and that, back in 1996, people did not have the understanding [about gay marriage] that they have today,” said the lawyer, Roberta A. Kaplan.

Windsor, an 83-year-old woman from New York, sued to challenge a $363,000 federal estate-tax bill after her female spouse died in 2009. Had Windsor been married to a man, she would have paid no estate tax. The lower court whose opinion the justices are evaluating, the New York-based 2nd Circuit Court of Appeals, found that the Defense of Marriage Act is unconstitutional.

During Wednesday’s arguments, Roberts told Kaplan that politicians today appear to be on Windsor’s side rather than the other way around.

“As far as I can tell, political figures are falling over themselves to endorse your side of the case,” he said, possibly referring to a string of mainly Democratic senators who announced for the first time this week that they support same-sex marriage rights.

Support for Law

Paul D. Clement, the lawyer who argued in favor of the 1996 act, said it is not discriminatory and instead represents an effort by Congress to provide uniformity in federal law. After the Obama administration abandoned a legal defense of the marriage law in 2011, the House subsequently decided to take up the effort, and Republican leaders have authorized $3 million to pay Clement’s law firm.

Clement said the federal government took a cautious, rather than an activist, approach in passing the law because it sought to ensure that federal benefits would be applied equally across the country. He noted that Hawaii legalized same-sex unions and that members of Congress wanted to ensure that Hawaii would not dictate national policy.

By passing DOMA, Congress balanced its historic interest in deferring to the states on marriage with its historic interest in providing uniformity of federal laws, Clement argued.

Clement also noted that Congress did not act with “animus” because it previously asked the Justice Department for its opinion on whether DOMA is constitutional and had received assurances on three occasions that it was. Such behavior does not reflect a body that has been acting with “animus,” he said.

The first 50 minutes of Wednesday’s arguments focused on a far narrower but potentially significant legal question: whether it is permissible for the House to take up the defense of the law in the administration’s absence.

Justices on both the left and right appear to have serious concerns on that point, even though both the administration and House Republicans want the case to be considered on the merits.

At one point early in the arguments, Roberts needled the administration for asking the Supreme Court to decide the case, even though it has already won in the 2nd Circuit Court of Appeals. Apparently referring to President Barack Obama, Roberts wondered why the president doesn’t have the “courage of his convictions” to rely on the lower court ruling.

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