- The Washington Times - Wednesday, March 27, 2013

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.

SEE ALSO: Gay-marriage questions offer few clues to Supreme Court’s direction

“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.

SEE ALSO: LATEST UPDATES: Supreme Court weighs gay marriage, DOMA on second day

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.

• Tom Howell Jr. can be reached at thowell@washingtontimes.com.

• David R. Sands can be reached at dsands@washingtontimes.com.

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