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Supreme Court DOMA Case: Justices Likely to Overturn Part of Law for ''Infringing on States' Right''

( [email protected] ) Mar 27, 2013 06:18 AM EDT

The majority of the Supreme Court justices indicate it may strike down Defense of Marriage Act (DOMA) as they said it infringes on the traditional role of the states in defining marriage.

DOMA enacted in 1996, defines on a federal level marriage as between a man and a woman, which prevented married same-sex couple access to federal benefits.

The DOMA challenge was brought by Edie Windsor, an 83-year-old woman from New York who married Thea Clara Spyer in 2007. After Spyer's death in 2009, Windsor was denied an exemption of federal estate taxes.

Justice Anthony Kennedy referred to DOMA as “inconsistent” because it purports to give authority to the states to define marriage while limiting recognition of those determinations, according to Chicago Tribune.

Kennedy’s states’ rights concerns were echoed by two of the liberal members of the bench, Justice Sonia Sotomayor and Justice Elena Kagan. Justice Ruth Bader Ginsburg and Justice Stephen Breyer also raised concerns about the law.

Ginsburg pointed out that a couple who is legally married in their state might be denied marital deductions and Social Security benefits. She asked the DOMA defendant about the two kinds of marriage in states that allow gay marriage: “the full marriage, and then this sort of skim milk marriage,” in her words, according to ABC News.

The four liberals, Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor, appear to view the issue as one of gay rights while the four conservatives, Justice Samuel Alito, Antonin Scalia, Clarence Thomas and Chief Justice John Roberts, are assumed to be skeptical of the view that a right to same-sex marriage can be found in the Constitution.

The defenders of DOMA argue that it is the purview of Congress and the president to define what marriage is for federal law and no right to same-sex marriage can be found in the Constitution.

At court, Paul Clement, George W. Bush’s former solicitor general, defended DOMA on behalf of the Bipartisan Legal Defense Group (BLAG) led by House Republicans.

Clement said that one reason DOMA was passed was for “uniformity,” so that the federal definition of marriage would be the same throughout the states, according to ABC News.

In his briefs, Clement argued that the federal government does not invalidate any state laws allowing gay marriage, but instead ensures that federal benefits are distributed uniformly throughout the states.

Justice Elena Kagan attacked his position and cited moral disapproval while reading a 1996 committee report. She said that Congress might have been motivated partially by animus.

Chief Justice John Roberts challenged that position.

“Eighty-four senators based their vote on moral disapproval?” he asked. Roberts also suggested that gays and lesbians should not be considered a politically powerless "suspect class," requiring higher scrutiny for discrimination in laws. Roberts noted the recent sea change in public opinion recently on the issue of gay marriage.

During that period, the high court's conservative wing criticized President Barack Obama and his Justice Department for abandoning legal defense of DOMA in 2011, a decision that left Republican lawmakers as its primary defenders, according to Chicago Tribune.

Chief Justice John Roberts questioned whether Obama had "the courage of his convictions" for continuing to enforce DOMA while calling it invalid.

Before debating the merits of DOMA, the justices spent 50 minutes debating various procedural hurdles that could prevent the court from issuing a decision.

There are a number of procedural issues that the case could be decided upon as well. DOMA is not being defended by the president (via the attorney general's office), as would customarily be the case. Instead, DOMA is defended by the Bipartisan Legal Advisory Group, which was appointed by the House of Representatives. A large portion of the oral arguments were spent addressing the question of whether the court should even be hearing the case, given that Windsor is suing the government to obtain money that the government agrees she should have.

Both sides want the court to consider the merits of DOMA, so the court has appointed Harvard law professor Vicki Jackson to argue the threshold issues.