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First impression: Supreme Court justices don't like DOMA

WASHINGTON -- For the second consecutive day, the U.S. Supreme Court today tackled crucial gay-rights issues, this time peppering questions at attorneys on both sides of the Defense of Marriage Act (DOMA) appeal.

The initial impression is that if the high court takes the case, instead of refusing it because of serious questions about legal standing about whether House Republicans can defend the law in court, it that a clear majority of justices are in favor of striking down DOMA.

The DOMA case involves Edie Windsor, 83, of New York City, who was ordered by the IRS to pay $363,000 in estate taxes after her spouse and partner of more than 40 years died about three years ago. Had Windsor had been married to a man, the IRS would not have sent her an estate tax bill at all. Lawyers for Windsor successfully argued in district court and appeals court that DOMA discriminates against gay and lesbian couples who are legally married and punishes widows and widowers of gay and lesbian couples for being gay.

Windsor's attorneys argued today in the high court that Section 3 of DOMA violates the equal protection clause guaranteed in the Fifth Amendment by excluding married gay and lesbian couples from more than 1,200 federal marital benefits. They also contended that the law serves no legitimate or compelling government interest other than to discriminate against married gay and lesbian couples.

Just like Tuesday during the oral arguments involving California's Proposition 8, some members of the high court questioned whether the government is applying a double standard, saying on one hand that the law is unconstitutional yet at the same time enforcing the law.

Justice Anthony Kennedy, often the swing vote, clearly seemed bothered by the constitutionality of DOMA and made the argument that the law meddled with states' rights. Like a bad omen, this point of view could also help influence Kennedy's vote in the Proposition 8 case, where it appears he holds the decisive vote.

Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan appeared to view the DOMA case as a gay-rights case and be against the law's unconstitutionality.

The reaction

NCLR executive director Kate Kendell:

“The so-called Defense of Marriage Act (DOMA) is a mean-spirited law that serves only to harm same-sex couples and their children while helping no one. We are confident the Supreme Court will agree that depriving legally married same-sex couples of the many federal rights and benefits offered to spouses does nothing to strengthen anyone else’s marriage. There is no legitimate reason to treat married same-sex couples differently than other couples when it comes to taxes, Social Security, and immigration. As the Solicitor General ably argued today, DOMA is the rare kind of law that is so offensive to the Constitution’s basic promise of equality that the government cannot defend it. We join the United States Department of Justice and our colleagues at the ACLU in urging the Court to strike down DOMA.”

Jon Davidson, legal director of Lambda Legal:

"On consecutive days we have witnessed lawyers arguing passionately and effectively before the Supreme Court for equal rights and protections for
same-sex couples. The solicitor general explained that section three of DOMA is discrimination and it is time for the Court to recognize that this discrimination cannot be reconciled with our fundamental commitment to equal protection under the law."

Camilla Taylor, Marriage Project director for Lambda Legal:

"Edie Windsor had her day in court and bravely stood not only for herself, but for all lesbian and gay couples treated unequally by their government. As we argued in our friend-of-the-court brief, DOMA heaps upon married same-sex couples disadvantages that defy credible connection to any legitimate governmental purpose. President Obama knows it and refuses to defend DOMA in court. Former President Clinton, who signed DOMA into law, knows it. And now I believe the justices of the Supreme Court have persuasive grounds to affirm the Second Circuit's decision. Today spells doomsday for DOMA."

Winnie Stachelberg, executive vice president for external affairs at the Center for American Progress:

"The writing is on the wall when it comes to marriage equality for gay and lesbian couples. The shift in public opinion toward supporting the freedom to marry was even more obvious over the past two days due to the groundswell of support, not only in front of the Supreme Court building but also in cities across the nation, as well as in the online community. One of the greatest promises of our Constitution is equality under the law. Equal protection under the U.S. Constitution requires equal treatment of all Americans, and that includes equal treatment for loving and committed same-sex couples."

Additional reading on DOMA

Lambda Legal has a "one stop DOMA shop" HERE.

This is a breaking news story. Refresh the page or revisit the story as new developments come in.

Ken Williams is Editor in Chief of SDGLN. He can be reached at ken@sdgln.com, @KenSanDiego on Twitter, or by calling toll-free to 888-442-9639, ext. 713.