US Supreme Court may favour repeal of gay rights law

Court weighs 1996 law denying legally married gay couples same benefits as opposite-sex marriage

Edith Windsor (centre) is mobbed by journalists and supporters as she leaves the Supreme Court in Washington, yesterday. The court heard oral arguments in the case “Edith Schlain Windsor” challenging the constitutionality of the Defence of Marriage Act, the second case about same-sex marriage this week. Photograph: Chip Somodevilla/Getty Images)

Edith Windsor (centre) is mobbed by journalists and supporters as she leaves the Supreme Court in Washington, yesterday. The court heard oral arguments in the case “Edith Schlain Windsor” challenging the constitutionality of the Defence of Marriage Act, the second case about same-sex marriage this week. Photograph: Chip Somodevilla/Getty Images)

Thu, Mar 28, 2013, 06:46


The US Supreme Court appeared to be in favour of repealing a 1996 federal law that denies legally married gay couples the same benefits as opposite-sex marriages as a majority of judges queried its constitutionality.

In the landmark case on gay marriage and the rights of same-sex married couples – the second in two days before the court – nine judges debated the constitutionality of the Defence of Marriage Act that defines marriage as “only a legal union between one man and one woman as husband and wife.”

New York widow Edith Windsor (83) brought the case to America’s highest court after she was forced to pay a tax bill of $363,053 (€284,000) following the 2009 death of Thea Spyer, her partner of more than 40 years, because US federal law did not recognise their marriage in Canada two years earlier.

A spouse in a heterosexual couple would have avoided this tax and been entitled to about 1,100 other federal benefits that same-sex married partners are not afforded under the 1996 Act.


Republicans defend law
Republican leaders in Congress are defending the law because President Obama believes the measure is unconstitutional and has chosen not to defend it, though his administration continues to enforce it.

Justice Anthony Kennedy, who is likely to hold the decisive vote as the typical swing vote on the split court, contested an assertion by Paul Clement, the former US solicitor general, who is defending the law on behalf of the House Republicans, that the Act defines marriage in federal law “in a consistent way”.

“But it’s not really uniformity because it regulates only one aspect of marriage – it doesn’t regulate all of marriage,” Justice Kennedy responded.

The judge, who has written majority opinions in two other cases advancing gay rights, said that when the law affects 1,100 benefits, the federal government is “intertwined with the citizens’ day-to-day life” and there is a “real risk of running into conflict” with an individual state’s capacity to regulate marriage.

Liberal judges rowed in behind Justice Kennedy, saying the law created two tiers of marriage, described by Justice Ruth Bader Ginsburg as a “full marriage and then this sort of skim milk marriage”.


Support for gay marriage
Nine states and the district of Columbia have legalised same-sex marriage as polls show growing support among Americans for gay marriage.

Some conservative justices, including the chief justice, John Roberts, expressed frustration that the law was being enforced until the court ruled on it, even though the president considers the act unconstitutional.

“I don’t see why he doesn’t have the courage of his convictions and execute not only the statute but do it consistent with his view of the constitution rather than saying ‘oh we’ll wait till the Supreme Court tells us we have no choice’,” said Justice Roberts.

Ms Windsor’s lawyer Roberta Kaplan said there had been a “sea change” since 1996 when Congress expressed “moral disapproval of gay people” by enacting the law.


Sea change
Justice Roberts responded, saying that the sea change had “a lot to do with the political force and effectiveness of people representing

[and] supporting your side of the case.”