“Citizens’ day-to-day life” is affected by the more than 1,100 references to marriage contained in federal laws and regulations, Kennedy said, creating a “real risk of running in conflict with what has always been thought to be the essence of the state police power, which is to regulate marriage, divorce, custody.”
It appeared Kennedy’s interest in states’ rights might align with the concerns of the court’s four liberals that the law impermissibly targeted gay couples. Justice Ruth Bader Ginsburg said that the law, by withholding things such as tax advantages, Social Security benefits and leave to care for a spouse, raises a question: “What kind of marriage is it?”
A decision on DOMA — passed in 1996 when same-sex marriages were only theoretical — might be the most tangible development to come from the court’s two days of hearings on same-sex marriage.
On Tuesday, when considering an appeals court’s decision that overturned California’s voter-approved ban on same-sex marriage, the justices seemed to be looking for the narrowest way possible to resolve the case. They seemed reluctant to find that gay people have a constitutional right to marry.
In Wednesday’s nearly two hours of argument, the court also spent little time on another important legal issue the cases raised: whether laws affecting homosexuals deserved the kind of heightened scrutiny that courts use when examining possible discrimination against racial minorities.
But the arguments did reveal an unsurprising divide on the court, with liberal justices more supportive of gay rights and same-sex marriage and conservatives more tolerant of government action to protect “traditional marriage.”
At Wednesday’s arguments, Chief Justice John G. Roberts Jr. was skeptical of the idea that gay people might lack political power when it comes to government actions.
“You don’t doubt that the lobby supporting the enactment of same sex-marriage laws in different states is politically powerful, do you?” Roberts asked Roberta A. Kaplan, one of the lawyers bringing the challenge to DOMA. “As far as I can tell, political figures are falling over themselves to endorse your side of the case.”
“The fact of the matter is, Mr. Chief Justice,” Kaplan responded, “that no other group in recent history has been subjected to popular referenda to take away rights that have already been given or exclude those rights the way gay people have.”