A majority of the Supreme Court may be willing to strike down the controversial 1996 federal law that defines marriage as the union of a man and a woman, but perhaps not on the grounds being sought by the Obama administration and supporters of gay marriage.
That was the dominant conclusion Wednesday as the court heard arguments for the second straight day in a potentially landmark gay marriage case. On Tuesday, the justices explored the constitutionality of a 2008 California ballot initiative that banned same-sex marriage, a case that could lead to the measure being struck down and, potentially, to the nationwide legalization of such unions.
On Wednesday, Justice Anthony M. Kennedy, who is widely seen as the swing vote in the California challenge, indicated that he could provide the decisive vote in striking down the federal Defense of Marriage Act as well. Kennedy suggested strongly that the measure may infringe on the traditional right of states to regulate marriage.
The 17-year-old law, which was passed by a Republican Congress and signed by President Bill Clinton, denies more than 1,000 federal benefits to gay couples, even if those couples are married legally under state law.
By unequivocally defining marriage as the union of a man and a woman, regardless of how states choose to define their residents’ unions, the federal law is “not consistent” with the historic role of states in regulating marriage, Kennedy said.
The measure is “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,” he said.
Kennedy’s position could be a cause of celebration for gay marriage advocates, including more than 200 Democratic members of Congress who had urged the court to strike down the law. But it was clearly not the legal interpretation favored by the Obama administration’s top lawyer, Solicitor General Donald B. Verrilli Jr., who urged the court to accept a broader rationale for striking down the law: that it violates fundamental equal-protection guarantees set out in the Constitution.
Verrilli sought to persuade the justices that DOMA was not an incursion by Congress into the domain of the states but rather an act of discrimination on the part of Congress. Citing the House report accompanying the legislation, he said the law amounted to an “expression of moral disapproval” about gay marriage on the part of lawmakers.
“I think it’s time for the court to recognize that this discrimination, excluding lawfully married gay and lesbian couples from federal benefits, cannot be reconciled with our fundamental commitment to equal treatment under law,” Verrilli said. “This is discrimination in its most very basic aspect.”
The nearly two-hour argument on Wednesday, which followed an 80-minute debate on Tuesday, revealed the traditional ideological rift on the high court between its liberal and conservative justices.
Liberals generally seemed inclined to strike down DOMA on either federalism or equal protection grounds, with Justice Ruth Bader Ginsburg arguing that the law “affects every area of life” for same-sex couples and draws distinctions between what she ironically called “full marriage” and “this sort of skim-milk marriage.”
But conservatives, including Chief Justice John G. Roberts Jr., doubted Verrilli’s contention that the law represents an intentionally discriminatory act on the part of Congress.
Senate Minority Leader Mitch McConnell, R-Ky., carries a musket on stage as he speaks during the American Conservative Union's Conservative Political Action Conference (CPAC) at National Harbor, Md., on Thursday March 6, 2014.