A majority of Supreme Court justices on Wednesday expressed doubts about the constitutionality of The Defense of Marriage Act as the high court spent its second day looking at same sex marriage laws.
A day after it heard arguments over California’s Proposition 8 ban on same sex marriage, justices on Wednesday spent two hours questioning the DOMA law and whether it goes too far in taking away state’s rights to determine what is a legal marriage.
Lyle Denniston, reporter for the well regarded ScotusBlog, succinctly headlined his summary of the arguments as “Argument recap: DOMA is in trouble.”
Denniston cited the comments of Justice Anthony M. Kennedy that the law would create a “real risk” of overturning what is traditionally state’s rights to determine what constitutes a marriage.
The court as it did Tuesday took the unusual step of releasing a tape of oral arguments on the case almost immediately after the court argument. Listen to audio here.
It also released a transcript, read here.
The Justice Department has declined to defend the law, leaving the law’s defense Wednesday in the hands of counsel from the House of Representatives.
Justice Antonin Scalia and several other justices questioned the specter of the Justice Department failing to defend a law enacted by Congress.
Deputy Solicitor General Sri Srinivasan responded that “The President made an accountable legal determination that this act of Congress is unconstitutional.”
Srinivasan said while Justice Department unwillingness to defend the statute was unusual, it wasn’t unprecedented.
Roberta A. Kaplan, speaking for groups challenging the law, urged justices to rule the law unconstitutional.
“Because of DOMA, many thousands of people who are legally married under the laws of nine sovereign States and the District of Columbia are being treated as unmarried by the federal government solely because they are gay,” she said.
Paul D. Clement, a lawyer representing the House of Representatives, defended the law.
“For purposes of Federal law it's much more rational for Congress to — to say, and certainly a rational available choice, for Congress to say, ‘We want to treat the same-sex couple in New York the same way as the committed same-sex couple in Oklahoma and treat them the same,’” he said.