You are currently viewing the printable version of this article, to return to the normal page, please click here.

Obama administration under fire in gay marriage arguments

  • Kevin Coyne of Washington holds flags in front of the Supreme Court in Washington on March 27, 2013. The U.S. Supreme Court, in the second day of gay marriage cases, turned to a constitutional challenge to the federal law that prevents legally married gay Americans from collecting federal benefits generally available to straight married couples. (Associated Press)Kevin Coyne of Washington holds flags in front of the Supreme Court in Washington on March 27, 2013. The U.S. Supreme Court, in the second day of gay marriage cases, turned to a constitutional challenge to the federal law that prevents legally married gay Americans from collecting federal benefits generally available to straight married couples. (Associated Press)
  • This artist rendering shows attorney Charles J. Cooper, right, addressing the Supreme Court in Washington, Tuesday, March 26, 2013, as the court heard arguments on California's ban on same-sex marriage. Justices, from left are, Sonia Sotomayor, Stephen Breyer, Clarence Thomas, Antonin Scalia, Chief Justice John Roberts, and Justices Anthony Kennedy, Ruth Bader Ginsburg, Samuel Alito and Elena Kagan. (AP Photo/Dana Verkouteren)
This artist rendering shows attorney Charles J. Cooper, right, addressing the Supreme Court in Washington, Tuesday, March 26, 2013, as the court heard arguments on California's ban on same-sex marriage. Justices, from left are, Sonia Sotomayor, Stephen Breyer, Clarence Thomas, Antonin Scalia, Chief Justice John Roberts, and Justices Anthony Kennedy, Ruth Bader Ginsburg, Samuel Alito and Elena Kagan. (AP Photo/Dana Verkouteren)
  • A demonstrator holds a bible while marching outside the Supreme Court in Washington, Tuesday, March 26, 2013, as the court heard arguments on California's voter approved ban on same-sex marriage, Proposition 8. (AP Photo/Pablo Martinez Monsivais)

A demonstrator holds a bible while marching outside the Supreme Court in Washington, Tuesday, March 26, 2013, as the court heard arguments on California's voter approved ban on same-sex marriage, Proposition 8. (AP Photo/Pablo Martinez Monsivais)
  • Vanessa Torres (center) and her fiance Rachel Broussard (right) of Hampton, Va., console Vanessa's daughter Gabriela, 12,  as they listen to speakers during a rally for marriage equality outside the Supreme Court in Washington as the justices begin hearing two days of arguments in cases involving gay marriage on March 26, 2013. Torres and Broussard each have two children from previous marriages and are getting married in August. (Andrew Harnik/The Washington Times)Vanessa Torres (center) and her fiance Rachel Broussard (right) of Hampton, Va., console Vanessa's daughter Gabriela, 12, as they listen to speakers during a rally for marriage equality outside the Supreme Court in Washington as the justices begin hearing two days of arguments in cases involving gay marriage on March 26, 2013. Torres and Broussard each have two children from previous marriages and are getting married in August. (Andrew Harnik/The Washington Times)
  • Demonstrators stand outside the Supreme Court in Washington, Tuesday, March 26, 2013, where the court will hear arguments on California’s voter approved ban on same-sex marriage, Proposition 8. (AP Photo/Pablo Martinez Monsivais)
  • **FILE** Franco Ciammachilli (right) of Washington waves a rainbow flag, a symbol of gay pride, behind supporters of traditional marriage outside the U.S. Supreme Court in Washington as the justices began hearing two days of arguments in cases involving gay marriage on March 26, 2013. (Andrew Harnik/The Washington Times)**FILE** Franco Ciammachilli (right) of Washington waves a rainbow flag, a symbol of gay pride, behind supporters of traditional marriage outside the U.S. Supreme Court in Washington as the justices began hearing two days of arguments in cases involving gay marriage on March 26, 2013. (Andrew Harnik/The Washington Times)
  • Demonstrators stand outside the Supreme Court in Washington, Tuesday, March 26, 2013, where the court will hear arguments on California’s voter approved ban on same-sex marriage, Proposition 8. (AP Photo/Pablo Martinez Monsivais)
  • Demonstrators march outside the Supreme Court in Washington, Tuesday, March 26, 2013, where the justices were hearing arguments on California's voter approved ban on same-sex marriage, Proposition 8. (AP Photo/Pablo Martinez Monsivais)

Demonstrators march outside the Supreme Court in Washington, Tuesday, March 26, 2013, where the justices were hearing arguments on California's voter approved ban on same-sex marriage, Proposition 8. (AP Photo/Pablo Martinez Monsivais)
  • Qween Amar (left) from Orlando, Fla., dances March 26, 2013, by Margie Phelps (right), a member of the Westboro Baptist Church, outside the Supreme Court in Washington,where the court will hear arguments on California's voter approved ban on same-sex marriage, Proposition 8. (Associated Press)Qween Amar (left) from Orlando, Fla., dances March 26, 2013, by Margie Phelps (right), a member of the Westboro Baptist Church, outside the Supreme Court in Washington,where the court will hear arguments on California's voter approved ban on same-sex marriage, Proposition 8. (Associated Press)

Gay marriage is on trial but it was the Obama administration facing the heat as the Supreme Court began the second of two days of landmark oral arguments on the constitutionality of gay marriage.

With the court on Wednesday taking up the federal Defense of Marriage Act (DOMA) effectively barring federal recognition of state same-sex marriage laws, several justices questioned the Justice Department's declaration that it would not defend the law's constitutionality even as it continued to enforce the statute.

Centrist Justice Anthony Kennedy, often seen as the key swing vote on the nine-member court, said it was "troubling" that a president and his administration could pick and choose which laws to defend in constitutional challenges. Chief Justice John Roberts asked Deputy Solicitor Sri Srinivasan, the lawyer representing the administration in Wednesday's arguments, "What is your test?"

Mr. Srinivasan, said the court should issue a ruling on DOMA, and argued there is a precedent for the executive branch to not defend a law even while it was enforcing it. But Associate Justice Antonin Scalia challenged the government's line of argument, saying what was being asked of the high court was "totally unprecedented."

In a second hour, Solicitor General Donald B. Verrilli Jr. said DOMA subjected legally married same-sex couples to "terrible discrimination," and the federal government should not have its own uniform marriage law that is out of step with states. "We don't think the federal government should be thought of as the 51st state," he said.

But Justice Kennedy later questioned whether the federal statute defining what marriage intruded into an area best left to the individual states to decide.

"The question is whether the federal government … has the authority to regulate marriage," he said. "That authority undermines the states' role in the federal system."

Because the administration declined in 2011 to defend the law, the GOP majority in the House of Representatives has hired noted constitutional lawyer Paul Clement to defend DOMA. President Obama announced last year he had personally changed his view and now support same-sex marriage.

Mr. Clement in turn faced some sharp questions from the justices over the House's right to challenge the law.

"The House is the proper authority to defend" DOMA, Mr. Clement insisted at one point.

The case before the court involves a dispute over the application of federal estate taxes for a lesbian couple married in Canada but living in New York. As the executor of her late partner's estate, Edith Windsor is seeking a refund on the $360,000 in federal taxes she was billed because she was not recognized as her partner's spouse.

A decision to strike down the Defense of Marriage Act could have broad consequences, as more than 1,000 federal laws and programs have rules whose application depends in part on a person's marital status.

The court began the two-hour oral arguments Wednesday with a lengthy discussion over whether the court should even be deciding the case, and whether the House of Representatives had legal "standing" to defend DOMA.

On Tuesday, the high court heard a separate case on the constitutionality of California's Proposition 8, the 2008 voter initiative effective banning gay marriage in the state.

The Supreme Court is expected to issue ruling in the two cases by June.

© Copyright 2014 The Washington Times, LLC. Click here for reprint permission.

About the Author
David R. Sands

David R. Sands

Raised in Northern Virginia, David R. Sands received an undergraduate degree from the University of Virginia and a master’s degree from the Fletcher School of Law and Diplomacy at Tufts University. He worked as a reporter for several Washington-area business publications before joining The Washington Times.

At The Times, Mr. Sands has covered numerous beats, including international trade, banking, politics ...

Latest Stories

Latest Blog Entries

Comments
blog comments powered by Disqus
TWT Video Picks