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Wednesday, March 27, 2013

Justices Indicate DOMA Could Be Struck Down

A group from Alabama prays in front of the Supreme Court in Washington, Wednesday, March 27, 2013, before the court's hearing on the Defense of Marriage Act (DOMA). (AP/Carolyn Kaster)

A group from Alabama prays in front of the Supreme Court in Washington, Wednesday, March 27, 2013, before the court’s hearing on the Defense of Marriage Act (DOMA). (AP/Carolyn Kaster)

The Supreme Court is indicating it could strike down the law that prevents legally married gay couples from receiving a range of federal benefits that go to married people.

Justice Anthony Kennedy, often the decisive vote in close cases, joined the four more liberal justices Wednesday in raising questions about the provision of the federal Defense of Marriage Act that is being challenged at the Supreme Court.

Kennedy said the law appears to intrude on the power of states that have chosen to recognize same-sex marriages. Other justices said the law creates what Justice Ruth Bader Ginsburg called two classes of marriage, full and “skim-milk marriage.”

The federal law affects a range of benefits available to married couples, including tax breaks, survivor benefits and health insurance for spouses of federal employees.

It still is possible the court could dismiss the case for procedural reasons, though that prospect seemed less likely than it did in Tuesday’s argument over gay marriage in California.

The motivation behind the 1996 federal law, passed by large majorities in Congress and signed by President Bill Clinton, was questioned repeatedly by Justice Elena Kagan.

She read from a House of Representatives report explaining that the reason for the law was “to express moral disapproval of homosexuality.” The quote produced an audible reaction in the courtroom.

Paul Clement, representing the House Republican leadership in defending the law, said the more relevant question is whether Congress had “any rational basis for the statute.” He supplied one, the federal government’s interest in treating same-sex couples the same no matter where they live.

Clement said the government does not want military families “to resist transfer from West Point to Fort Sill because they’re going to lose their benefits.” The U.S. Military Academy at West Point is in New York, where same-sex marriage is legal, and Fort Sill is in Oklahoma, where gay marriages are not legal.


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  • http://www.facebook.com/jeff.rapport Jeff Rapport

    I have now heard several commentators – most recently Nina Totenberg on today’s Morning Edition – allude to “2,000 years of human history.”  Really?  Scientists say it is closer to 200,000 years and while this may sound nitpicky, the slip reveals the religious tone that has crept into this debate.

    Seems to me gay folks don’t seem to be trying to push their way into anyone’s church – or sensibilities.  They simply ask for equal protection as guaranteed by the Constitution.  While this may ruffle some people’s feathers, unless “marriage” is changed to “civil union” in the thousands of US laws that confer special rights and privileges upon married couples, there is undeniable discrimination against this class of people.

    And if this logic cannot prevail, then we would have to allow separate drinking fountains based on the owner’s personal belief.  Seems sad this kind of discussion still has to happen.

    • aknman49

      I suppose the phrase “human history” is meant as shorthand for the full panoply of the historic record which is more like 6,000 years, so 200,000 might be stretch.  We have no idea what the coupling mores of the prehistoric humanoids might have been, so anything even beyond 4,000 years is a rough guess, at best.

      That said, I completely agree that referring to human history in the framework of the post-Christian era does sound rather religious in tone.  Interestingly, before Christ the Judeo tradition was one of polygamy and female chattel, neither of which those “traditional marriage” proponents dare mention.

  • http://www.jerroldrichards.com/ Jerrold Richards

    For some reason in our
    society, homosexuality seems tightly enmeshed with attention vampirism and
    covert manipulation techniques. I think we need to find ways to protect the
    civil and human rights of people who are hardwired for the former, without also
    granting too much license for the latter. Now we’ve put one aspect of this task into the
    hands of nine people heavily weighted toward old, rightwing, white guys. Hey,
    what could go wrong?

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