(WASHINGTON) — For the second straight day, the Supreme Court’s liberal justices — joined by Justice Anthony Kennedy — voiced skepticism about defining marriage as between a man and a woman.
After considering a challenge to California’s Proposition 8 ban on gay marriage Tuesday, the Supreme Court heard arguments Wednesday in a case seeking to overturn the Defense of Marriage Act, the 1996 law signed by President Bill Clinton that defined marriage as heterosexual and denied federal benefits to gay couples who are legally married in their states.
Between the two cases, the Supreme Court could issue a landmark ruling on gay marriage by the end of June.
If the court decides to rule on the merits of gay marriage, supporters of it once again saw encouraging signs.
Justice Anthony Kennedy, viewed as a key swing vote, appeared critical of the federal government’s declining to recognize marriages that states have made legal. Kennedy voiced sympathy Tuesday for children of gay couples who want their parents’ unions to be recognized.
Kennedy cited concerns about federalism, saying there was a “real risk” of the federal law running into conflict with a state’s power.
“The question is,” Kennedy asked, “whether or not the federal government … has the authority to regulate marriage.”
Unlike Tuesday’s Prop 8 arguments, when lawyers and justices aired common disputes about gay marriage, Wednesday’s DOMA proceedings involved less profound talk about the merits of gay marriage’s legality. A major part of the discussion focused on how the case made its way to the Supreme Court, whether the court should even consider DOMA’s merits and the odd legal “standing” issue of who’s defending it.
After the Obama administration declared DOMA unconstitutional, a group of House Republicans stepped in to back its defense.
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.
DOMA has enraged gay-rights activists, some of whom have harbored resentment at Clinton for signing it into law in the first place.
Almost as soon as President Obama took office, activists urged the administration to oppose DOMA. In February 2011, they got their wish, as Attorney General Eric Holder announced in a letter to Congress that the Department of Justice would no longer defend DOMA in federal court.
The Obama administration has argued that DOMA should be overturned, while House Republicans have stepped in to defend it, tasking the Bipartisan Legal Advisory Group (BLAG) with arguing for DOMA in federal court.
The court is considering these two potentially landmark gay-marriage cases as the politics of the issue shift by the day.
After Ohio Republican Sen. Rob Portman announced his support for gay marriage earlier this month, becoming the only current GOP senator to hold that position, a herd of Democratic senators have stampeded toward the marriage issue. Sens. Claire McCaskill, D-Mo., Mark Warner, D-Va., Jon Tester, D-Mont., and Mark Begich, D-Alaska, have all announced their support for gay marriage this week.
Public opinion, too, has shifted drastically on gay marriage in the last decade.
A recent ABC News/Washington Post poll, taken March 7-10, showed 58 percent of respondents in support of gay marriage, while 36 percent opposed it. That’s nearly the opposite of public opinion on gay marriage in 2003, when ABC/Post polling showed 37 percent support and 55 percent opposition.
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