Majority Of Supreme Court Judges Question DOMA’s Constitutionality

supreme courtFive Supreme Court Justices — including good ole Swing Vote Sweet Chariot, Anthony Kennedy — questioned whether the Defense of Marriage Act was indeed constitutional today during the landmark Windsor v. United States case.

Two lower courts have already ruled the Defense of Marriage Act, which bars same-sex couples from receiving over 1,000 federally-regulated benefits, unconstitutional.

Back in February 2011, the Obama administration also deemed the law unconstitutional and officially stopped defending it in court. The administration, however, continues to enforce DOMA, effectively placing it on both sides of the battle.

Paul D. Clement, who is defending DOMA for the House Republicans seeing that the White House has backed out, argued that when lawmakers originally passed the law in 1996, they were concerned about the  “redefinition of an age-old institution.”

Justice Kennedy disagreed with the lawyer’s assertion that DOMA simply creates a single definition of marriage for federal purposes, noting that it was “not really uniformity” since same-sex couples are denied access to federal benefits that traditional couples have.

“There are two kinds of marriage,” said Justice Ruth Bader Ginsburg, who argued that the federal law created a two-tiered system of marriage. “Full marriage and the skim milk marriage.”

Edith “Edie” Windsor, her attorneys argued, was unfairly forced to pay more than $363,000 in federal estate taxes after the death of her spouse, Thea Spyer, as the IRS did not recognize Windsor as a surviving spouse under DOMA. Windsor’s attorney claimed this was in violation of the equal protection principles guaranteed by the U.S. Constitution.

“Thea and I were legally married. We loved and cared for each other for over 40 years. We deserve to be treated equally by our country, and not like second-class citizens,” Windsor, 83, said. “While Thea obviously can’t be here today, I know how proud she would be to see how far we have come for us to be standing on the steps of the Supreme Court asking for fair treatment of our marriage.”

If the Supreme Court strikes down the challenged part of DOMA, married same-sex couples in the nine states (and the District of Columbia) where same-sex marriage is legal would start to receive federal benefits.

The part of the law that says states don’t need to recognize same-sex marriages from other states is not before the court. That question would potentially be settled by the Prop 8 case heard yesterday.

In both cases, Justice Kennedy is faced with two of his primary concerns: gay rights and states’ rights. Whereas in the Prop 8 case there’s a larger question over the validity of the case, many observers feel that Kennedy will vote to strike down DOMA.

(h/t: The New York Times, ACLU)

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  • MikeE

    Civil rights should ALWAYS trump so-called “state rights”.

  • Charles175

    Supporters of DOMA did not even come to the cameras after the hearing.

  • technicolornina

    @MikeE: Queerty needs a like button for comments like these.

    If “states’ rights” always trumped, there are lots of folks down South who’d still be sitting in the back of the bus and unable to marry their sweethearts because their skin produces different amounts of melanin. Let us not forget that.

  • murphy0071

    Scalia and Thomas with their prehensil tails between their legs will be the only troglidytes to vote for DOMA joined by Alito whose tail you can’t tell from his mouth. These justices should be impeached for their wreckless attack on civil and voting rights.

  • Dakotahgeo

    @Charles175: If they didn’t see the handwriting on the wall before the SCOTUS hear the Prop 8 case, I they now have been embarrassed enough to hide for quite some time. NOM is all bluster and no bone marrow!

  • Dakotahgeo

    @Charles175: If they didn’t see the handwriting on the wall before the SCOTUS hearing* the Prop 8 case, I think* they now have been embarrassed enough to hide for quite some time. NOM is all bluster and no bone marrow!

  • RSun

    I am crossing my fingers for my American brothers and sisters. Hopefully, soon, you will have the same equal rights that I have in Canada. It’s time.

  • titansweet

    @technicolornina: I totally agree, a great observation! Also a like/dislike button would be so nice. Well may be one day Queerty will.

  • Hansolo

    What a time we live in. A black president….gay marriage. “Arc of history is long, but bends towards justice” – MLK. I am crossing my fingers too…I would pray but the other side is praying harder I think.

  • Marvin

    I just pray that gays will do better things with marriage than straights.

  • Jay Sheckley

    The headline shows a misunderstanding. The Justices ALWAYS question the constitutionality during these oral arguments. They need to understand all the points to accept or deny them. They already understand the ones they agree with. This is why the most erroreous predictions have always been based on Justice’s questions. Nothing happened today. All the arguments had already been submitted and the justices were getting more data to cover their asses. However, these are still good cases. To understand the likehood of success you should konw that real experts dont guess what the final decision will be. For more, skip the mass media, read scotusblog, and keep your spirits up.

  • LadyL

    States’ rights? Haven’t we seen this before? How does anyone make that argument with a straight face? (Ooh–see what I did there?)

  • LadyL

    @Dakotahgeo: NOM? I’m guessing you meant “DOMA”?


    States’ Rights has been an issue throughout American history. Even though you can’t expect the same policies to work across all 50 states, making it necessary for states to have some autonomy, when it comes to protect the rights of minorities–that’s the federal government’s job.

  • Cyn

    Repeat of the 60’s racial civil rights. I even remember that. The same arguments are used. States rights are pushed by the same people. Gods forbid you and your wife get transferred via your job to a state that doesn’t recognize marriages. Gods forbid your child is not recognized as your own and you have to put them in those schools.

    We are witnessing the last death throws of the rich white guy bigots control of the country. Scalia gets all creepy about gay male sex, but his sort will lose this one. Women’s rights come last, which is really pretty funny, I really thought women’s rights would be the one to bring full civil rights to all. Been wrong before, will be wrong again. I’m grateful.

    Now let’s all join hands and sing Kumbaya. No wait, that was the 60s. We Are Family? One Love? Somebody help an old lady here.

  • MickeyP.

    State rights? NOBODY should ever have the right to vote on another persons love,equality, liberty,marriage and rights. DOMA is bullshit and it violates all of those things. Passing marriage rights in California,and then taking them away was not only wrong but extremely cruel. Making a MARRIED woman pay over $363,000 on an estate that she,herself, helped to create was terrible and impossible to imagine. I believe we will get the equality and rights we so richly deserve because it’s not only the RIGHT thing to do,it’s the ONLY thing to do.

  • Freddie27

    Guess none of the commenters are lawyers? States’ rights happens to be a GOOD thing in the DOMA case in the sense that the federal government by defining marriage in Section 3 is involving itself and passing judgements on the prerogative of the states, namely the right to regulate marriage.

  • Dakotahgeo

    @LadyL: I was thinking of Natl. Organization of Marriage, and one other right wing group… makes no difference, they’re all a bunch of heathen knuckle draggers. DOMA is done for!!! :-D

  • technicolornina

    @Cyn: Hilariously, I have a friend named Cyn who also calls herself an old lady, and is not you (I don’t think, are you a Yu-Gi-Oh fan?). I would personally suggest we kick it old-school with a rousing chorus of Bowie’s “Modern Love.”

  • Joel J

    @LadyL: Republicans love that Tenth Amendment and they quote it whenever it suits their purpose.

Comments are closed.