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Supreme Court Justices Question Marriage Law’s Inequality

March 27, 2013

Some U.S. High Court Justices Question Defense of Marriage Law

Heather Davidson and Julie Berger, center, both of Shelbyville, Indiana, hold up a pride flag while standing in line with hundreds of others outside the Supreme Court for a chance to hear oral arguments on March 27, 2013 in Washington, DC. Photographer: Chip Somodevilla/Getty Images

Some U.S. Supreme Court justices questioned a federal law that defines marriage as a heterosexual union and denies benefits to same-sex couples, in a case that may affect the drive toward letting gays marry nationwide.

During arguments today on the 1996 Defense of Marriage Act, Justice Anthony Kennedy suggested that a federal law that doesn’t recognize gay marriages that are legal in a couple’s home state can create conflicts.

  • GRAPHIC:Supreme Court Weighs Same-Sex Marriage
  • LIVE BLOG: Supreme Court Gay Marriage Arguments

“You are at real risk of running in conflict” with the “essence” of state powers, Kennedy said. Still, he also said there was “quite a bit” to the argument by backers of the law that the federal government at times needs to use its own definition of marriage, such as in income-tax cases.

The court’s first-ever arguments on the issue come as support for gay marriage has risen to record highs among politicians and the public. The justices yesterday suggested they might not rule directly on a constitutional right to gay marriage, a step that would disappoint many advocates on both sides of the issue. Nine states and the District of Columbia now recognize same-sex marriages.

President Barack Obama’s administration is joining a New York widow in urging the court to strike down the Defense of Marriage Act, known as DOMA. Under the law, gay spouses can’t claim the federal benefits available to other married couples, including the rights to file a joint tax return and receive Social Security survivor benefits.

Kind of Marriage

Justice Ruth Bader Ginsburg said that when legally married couples can’t receive such federal benefits, “One might well ask, what kind of marriage is this?”

Attorney Paul D. Clement, arguing for congressional Republicans in support of the law, said the federal government also uses different definitions of marriage than the states in cases such as common-law marriage to determine couples’ tax status.

The government’s goal is uniform treatment of taxpayers in the various states, Clement said.

Under questioning from Justice Stephen Breyer, Clement said the federal government also could decide not to recognize state- law marriages based on matters such as differing ages of consent.

“You’re saying uniform treatment is good enough, no matter how odd it is,” Breyer said.

To contact the reporters on this story: Laurie Asseo in Washington at; Greg Stohr in Washington at

To contact the editor responsible for this story: Steven Komarow at

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