The Washington Times - March 27, 2013, 12:03PM

Updated at 3:08 p.m.

As the Supreme Court evaluates the future of gay marriage this week, the White House declined to say why it is still enforcing a federal ban on same-sex marriage if it believes the prohibition is unconstitutional.


Centrist Justice Anthony M. Kennedy, the high court’s swing vote who could determine the outcome of the case, said it was “troubling” that a president and his administration could pick and choose which laws to defend in constitutional challenges.

Because the administration in 2011 declined to defend the Defense of Marriage Act, the Republican majority in the House has hired constitutional lawyer Paul Clement to defend the law before the Supreme Court.

During the daily briefing Wednesday, a reporter pressed White House spokesman Josh Earnest on why President Obama has continued to enforce the law even though he believes it is unconstitutional.

Mr. Earnest said the administration has the responsibility to enforce laws that are on the books and “we’ll do that even for laws that we disagree with, including the Defense of Marriage Act.”

He referred further questions to the Department of Justice.

“They have done the legal analysis required to reach the conclusion that it is unconstitutional,” he said. “They are the ones that are responsible for enforcing these laws.”

Mr. Earnest also noted that Mr. Obama had a bevy of aides listening to the high court’s oral arguments who kept him apprised of developments.

Senior adviser Valerie Jarrett and White House counsel Kathy Ruemmler were among Mr. Obama’s aides who were at the Supreme Court watching the proceedings.

— Susan Crabtree


Updated at 1:03 p.m.

Edith Windsor, whose estate tax troubles following the death of her lesbian partner are at the center of a constitutional battle over gay marriage, said Wednesday she thought the Supreme Court arguments over her case “went beautifully.”

Addressing reporters after the morning of arguments concluded, Ms. Windsor said she thought the justices took her case “very seriously” and called the session a “spectacular event for my life.”

“The justices were gentle, they asked a lot of questions,” said Ms. Windsor, 83, who admitted she had trouble at times hearing the arguments. She said she felt “no hostility, no sense of inferiority” during the session.

On the second of two days on arguments on gay marriage, the justices debated the constitutionality of the federal Defense of Marriage Act (DOMA), which bars federal recognition of gay marriage in states such as New York, where Ms. Windsor lives, where it is legal.

Roberta Kaplan, one of Ms. Windsor’s lawyers, said she was “hopeful” following the oral arguments, and expressed skepticism that — as many legal observers have speculated — that the high court will find a legal off-ramp to avoid making a sweeping decision on same-sex marriage.

The court “has an obligation to decide” such momentous legal and social questions, she told reporters, adding she did not take from the questioning Wednesday that the justices were shying away from a decision.

Ms. Windsor repeatedly remarked on the significance of the day, noting that she still had not publicly revealed her sexuality when she married her late partner.

“I’m talking to you guys freely,” she told reporters. “I’d have been hiding in the closet 10 years ago.”

— David R. Sands


Updated at 12:06 p.m.

Rep. David Cicilline of Rhode Island said it is not surprising to see fellow Democrats racing to come out in support of same-sex marriage — despite their “evolving” stance or silence on the issue in the past — as the Supreme Court starts a second day of arguments on the constitutionality of gay marriage.

“I think people understand where we’re headed, and they want to be on the right side of history,” Mr. Cicilline, an openly gay congressman, told MSNBC on Wednesday. “I think this is, in many ways, an example of where the court is behind the public. The public has really moved on, and the majority of Americans support marriage equality, and I think this is an instance where the court has a responsibility to catch up.”

President Obama stated his support for gay marriage last year. Earlier this month, Hillary Clinton issued a statement to declare her support for the concept on the eve of arguments before Supreme Court that challenge Proposition 8 — a California ballot initiative that effectively banned same-sex marriage — and the federal Defense of Marriage Act of 1996, which prohibits legally married gay couples from obtaining federal benefits.

Democratic Sens. Claire McCaskill, of Missouri, Mark Begich, of Alaska, Jay Rockefeller, of West Virginia, and Mark Warner, of Virginia, Jon Tester of Montana and Kay Hagan of North Carolina are among those who went public with their support for same-sex marriage this week.

— Tom Howell Jr.