published Thursday, March 28th, 2013

Supreme Court justices hint at support for gay marriage at hearing

Rebecca Winchell of Columbia, Md. sings Wednesday in front of the Supreme Court in Washington. In the second of back-to-back gay marriage case, the Supreme Court is turning to a constitutional challenge to the law that prevents legally married gay Americans from collecting federal benefits generally available to straight married couples.
Rebecca Winchell of Columbia, Md. sings Wednesday in front of the Supreme Court in Washington. In the second of back-to-back gay marriage case, the Supreme Court is turning to a constitutional challenge to the law that prevents legally married gay Americans from collecting federal benefits generally available to straight married couples.
Photo by Associated Press /Chattanooga Times Free Press.

FAST FACTS

All Southern states, including Tennessee, Alabama, Georgia and North Carolina, have constitutional bans on gay marriage. In 2004, Georgia was among 13 states to ban same-sex marriage after Massachusetts legalized the practice, according to the Pew Research Center. In 2006, Alabama and Tennessee followed suit.

America's legal view of gay marriage varies state to state.

• Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, Washington and the District of Columbia issue marriage licenses to same-sex couples.

• Colorado, Delaware, Hawaii, Illinois, New Jersey, Rhode Island allow civil unions, providing spousal rights to same-sex couples. Four of these states (Colorado, Delaware, Hawaii and Illinois) also have statutes or constitutional provisions limiting marriage to relationships between a man and a woman.

• Thirty states have constitutional bans on same-sex marriage.

• Five states have statutory bans on same-sex marriage without civil unions.

• California, Nevada, Oregon, Washington grant nearly all state-level spousal rights to unmarried couples (domestic partnerships).

• Hawaii, Maine, Wisconsin and the District of Columbia provide some state-level spousal rights to unmarried couples (domestic partnerships).

Source: National Conference on State Legislatures

"This nation was founded on separation of church and state and all the arguments against LGBT marriage rights are on a religious level, and they shouldn't be upheld by the nation or the states. I also think we as American citizens are promised life, liberty and the pursuit of happiness, and for some of these religious arguments to keep us as second-rate citizens is unconstitutional."

— Keeli Monroe, 23, president of Spectrum, the gay-straight alliance at the University of Tennessee at Chattanooga

"I think for those of us who live in the South that have, not just laws against same-sex marriage, but constitutional amendments that ban all forms of relationship recognition, this Supreme Court action that they will take is of great interest. The hope is that they will rule in both cases a very broad ruling that would solidify our right to marry the person that we love. However, we need to be prepared for the fact that the court may issue a ruling that may not be favorable to us or issue a vary narrow ruling that has a limited impact on couples in Georgia and Tennessee."

— Jeff Graham, executive director at Georgia Equality, a nonprofit group that lobbies for the rights of LGBT persons to marry

"I think that the decision the court makes, if it says that natural marriage violates the constitution, will go down as one of the three or four landmark decisions that shaped the future of America like Brown v. Board of Education and Roe v. Wade. For those who support the historic definition, the best outcome that could be expected is for the Supreme Court to leave the definition of marriage up to the individual states."

— David Fowler, president of Family Action Council of Tennessee

Poll
Should the Supreme Court strike down the Defense of Marriage Act?

WASHINGTON — Concluding two days of intense debate, the Supreme Court signaled Wednesday it could give a boost to same-sex marriage by striking down the federal law that denies legally married gay spouses a wide range of benefits offered to other couples.

As the court wrapped up its remarkable arguments over gay marriage in America, a majority of the justices indicated they will invalidate part of the federal Defense of Marriage Act -- if they can get past procedural problems similar to those that appeared to mark Tuesday's case over California's ban on same-sex marriage.

Since the federal law was enacted in 1996, nine states and the District of Columbia have made it legal for gays and lesbians to marry. Same-sex unions also were legal in California for nearly five months in 2008 before the Proposition 8 ban.

Justice Anthony Kennedy, often the decisive vote in close cases, joined the four more-liberal justices in raising questions Wednesday about a provision that defines marriage as the union of a man and a woman for purposes of federal law.

It affects more than 1,100 statutes in which marital status is relevant, dealing with tax breaks for married couples, Social Security survivor benefits and, for federal employees, health insurance and leave to care for spouses.

Kennedy said the Defense of Marriage Act appears to intrude on the power of states that have chosen to recognize same-sex marriages. When so many federal statutes are affected, "which in our society means that the federal government is intertwined with the citizens' day-to-day life, you are at real risk of running in conflict with what has always been thought to be the essence of the state police power, which is to regulate marriage, divorce, custody," Kennedy said.

Other justices said the law creates what Justice Ruth Bader Ginsburg called two classes of marriage, full and "skim-milk marriage."

If the court does strike down part of DOMA, it would represent a victory for gay rights advocates. But it would be something short of the endorsement of gay marriage nationwide that some envisioned when the justices agreed in December to hear the federal case and the challenge to California's ban on same-sex marriage.

Still, the tenor of the arguments over two days reflected how quickly attitudes have changed since large majorities in Congress passed the federal DOMA in 1996 and President Bill Clinton signed it into law. In 2011, President Barack Obama ab andoned the legal defense of the law in the face of several lawsuits, and last year Obama endorsed gay marriage. Clinton, too, has voiced regret for signing the law and now supports allowing gays and lesbians to marry.

In 1996, the House of Representatives' report on the legislation explained that one of its purposes was "to express moral disapproval of homosexuality." Justice Elena Kagan read those words in the courtroom Wednesday, evoking a reaction from the audience that sounded like a cross between a gasp and nervous laughter.

Kagan's quotation gave lawyer Paul Clement, representing the Republican-controlled House of Representatives that has taken up defense of the law in place of the administration, some uncomfortable moments at the lectern.

"Does the House report say that? Of course, the House report says that. And if that's enough to invalidate the statute, then you should invalidate the statute," Clement said. But he 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.

Opposing Clement was the Obama administration's top Supreme Court lawyer, Donald Verrilli, who said the provision of DOMA at issue, Section 3, impermissibly discriminates against gay people.

"I think it's time for the court to recognize that this discrimination, excluding lawfully married gay and lesbian couples from federal benefits, cannot be reconciled with our fundamental commitment to equal treatment under law," Verrilli said.

Both Verrilli and Roberta Kaplan, the lawyer for Edith Windsor, the 83-year-old New York woman who sued over DOMA, told the court that views about gay people and marriage have shifted dramatically since 1996 when the law was approved.

"Why are you so confident in that judgment? How many states permit gay couples to marry?" Justice Antonin Scalia asked Kaplan.

Nine, she said.

"So there's been a sea change between now and 1996," Scalia said, doubtfully.

But Chief Justice John Roberts jumped on the idea of a rapid shift in opinion to suggest that perhaps gays and lesbians do not need special protection from the court.

"As far as I can tell, political leaders are falling all over themselves to endorse your side of the case," Roberts said.

The justices stepped into the dispute after lower federal courts ruled against the measure.

Lawsuits around the country have led four federal district courts and two appeals courts to strike down DOMA's Section 3, which defines marriage. In 2011, the Obama administration abandoned its defense of the law but continues to enforce it.

The change in position led the court to consider the related questions of whether the House Republican leadership can defend the law in court because the administration decided not to, and whether the administration forfeited its right to participate in the case.

Roberts and Scalia seemed most interested in this sort of outcome, and the chief justice offered perhaps the most pointed comment of the day when he wondered why Obama continues to enforce a law he believes is unconstitutional.

"I don't see why he doesn't have the courage of his convictions and execute not only the statute but do it consistent with his view of the Constitution, rather than saying, 'Oh, we'll wait till the Supreme Court tells us we have no choice,"' Roberts said.

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