WASHINGTON — A majority of the justices on Wednesday questioned the constitutionality of the Defense of Marriage Act of 1996, as the Supreme Court took up the volatile issue of same-sex marriage for a second day. Justice Anthony M. Kennedy, widely considered the swing vote on the divided court, joined the four liberals in posing skeptical questions to a lawyer defending the law, which defines marriage as the union of a man and a woman for the purposes of more than 1,000 federal laws and programs. “The question is whether or not the federal government under a federalism system has the authority to regulate marriage,” Justice Kennedy said during oral arguments, suggesting that the question should be left to the states. He disagreed with the contention that the federal law simply created a single definition for federal purposes, noting that same-sex couples are not treated the same as other married couples. “It’s not really uniformity,” he said. Justice Kennedy’s point echoed one made by his more liberal colleagues. Justice Ruth Bader Ginsburg said the federal law effectively created a two-tiered system of marriage. “There are two kinds of marriage,” she said. “Full marriage and the skim-milk marriage.” Paul D. Clement, a former solicitor general who is defending the law on behalf of House Republicans because the Obama administration has concluded it is unconstitutional, argued that the federal government has “a legitimate interest to weigh into the debate” about marriage and define what it means when it uses the term in deciding everything from taxes to Social Security benefits. Mr. Clement said that those 1,000 laws and programs had originally been passed with the traditional definition of marriage in mind and that Congress was worried in 1996 that if one state extended the definition to include same-sex couples, it would effectively force other states and the federal government to recognize them, too. Lawmakers were concerned, he said, that “this is a redefinition of an age-old institution.” The arguments came a day after another gay-marriage case was debated before the court, a challenge to California’s Proposition 8, which bans such unions. By comparison, Wednesday’s case is comparatively modest, raising the question of whether married same-sex couples are entitled to federal benefits. Another part of the Defense of Marriage Act that says states need not recognize same-sex marriages from other states is not before the court. Chief Justice John G. Roberts Jr. and some of the other conservative justices expressed irritation that the case was before them at all because an appeals court threw out the law’s definition of marriage and the Obama administration agreed with that ruling but appealed it anyway. President Obama has declared that the Defense of Marriage Act is unconstitutional and refuses to defend it in court, though the government is continuing to enforce it until the Supreme Court offers a judgment. Chief Justice Roberts called that a contradiction by the president. “I don’t see why he doesn’t have the courage of his convictions” and not enforce the law if he thinks it is unconstitutional, the chief justice said. Before arguments about the merits began, the justices listened to lawyers argue whether the federal government could appeal in the first place, since it agreed with the lower court decision. “This is wholly unprecedented,” Justice Antonin Scalia said. “You’re asking us to do something we’ve never done before to reach this case.” “It’s unusual,” acknowledged Srikanth Srinivasan, the principal deputy solicitor general. “No, it’s not unusual,” Justice Scalia said. “It’s totally unprecedented.” (more at link)
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