- The Washington Times - Wednesday, March 27, 2013

The federal government has a “powerful interest” in a single, uniform definition of marriage, even if it excludes gay unions that are legal in individual states, the lawyer defending the federal Defense of Marriage Act said Wednesday as the Supreme Court concluded two days of landmark arguments on gay marriage.

But Paul D. Clement, hired by the House of Representatives to argue for DOMA after the Obama administration refused to do so, faced often skeptical questions from the justices in nearly two hours of arguments centering on the clash between the law’s traditional definition of marriage between one man and one woman and a growing number of states that now sanction gay unions.

The justices, in particular key swing vote Justice Anthony M. Kennedy, seemed to be struggling with the impact that DOMA had in an area traditionally reserved for the states. As several justices noted, the DOMA statute affects more than 1,100 federal laws, programs, taxes and benefits that differ for married and single people.

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The broad sweep of DOMA “in our society means that the federal government is intertwined with citizens’ day-to-day life,” Justice Kennedy said. This puts the federal law “at real risk of running in conflict with what was always thought to be the essence of state police power, which is to regulate marriage, divorce, custody.”

Justice Ruth Bader Ginsburg added that for the federal government to tell legally married, same-sex couples they’re ineligible to file a joint tax return, take marital deduction or have surviving-spouse Social Security benefits, “One might well ask, what kind of marriage is this?” The result, she said, would be “two kinds of marriage: the full marriage and then this sort of skim-milk marriage.”

But as with Tuesday’s equally dramatic arguments over California’s Proposition 8 statute that bans gay marriage, the justices gave no clear indication of how they would rule on these gay marriage cases. And as in Tuesday’s arguments, the justices spent a considerable amount of time considering legal off-ramps that would allow them not to decide the cases, or to issue a far less sweeping ruling than many gay marriage advocates had hoped.

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The justices are expected to issue their rulings by June.

The session again inspired colorful, sign-filled demonstrations for and against gay marriage on the plaza outside the Supreme Court building.

Alexandria lawyer Jim McDonald said he would not oppose civil unions for same-sex couples, but not marriage: “I think whatever my wife and I are doing is not the same to what a homosexual couple does, whether they were involved in a wedding or not. I don’t think the word marriage is appropriate for the coupling of people of the same sex.”

But Dalton Collins, a gay rights activist studying law at the University of the District of Columbia, argued that “every American deserves to be treated equally under the law. … Justice is supposed to be blind.”

Estate tax bill

Wednesday’s case, United States v. Edith Windsor, revolves around an estate tax bill levied by the IRS against Ms. Windsor, now 83, after the death of her lesbian partner. Ms. Windsor was forced to pay $363,000 in federal estate taxes because the government would not recognize her 2007 Canadian marriage to her late partner, Thea Spyer.

Mr. Clement said rationale behind the traditional marriage definition approved overwhelmingly by Congress and signed by President Clinton was “all it has ever purported to be” — a definitional provision.

“When Congress passed every one of the 1,100 statutes affected by DOMA’s definition, the Congress that was passing that statute had in mind the traditional definition,” he said.

DOMA tells states “we’re going to stick with what we’ve always had, which is traditional definition” of marriage, he said. “No state loses any benefits by recognizing same-sex marriage. Things stay the same.”

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