Justice Anthony Kennedy, the swing vote on the high court, questioned whether the Defense of Marriage Act conflicted with state’s rights.
“You are at real risk of running in conflict” with states’ rights, Kennedy said during the court’s oral argument, according to Bloomberg. At the same time, he allowed that there was “quite a bit” to the argument that the federal government needs a standard definition of marriage for tax and other purposes.
Justice Ruth Bader Ginsburg was more directly skeptical. If the federal government doesn’t recognize a state marriage license, “One might well ask, what kind of marriage is this?” Ginsburg later said DOMA reduces gay marriages to “skim milk.” Justice Elena Kagan, another member of the liberal wing, said it was clear some lawmakers supported the law because of a dislike of homosexuality, according to the Wall Street Journal.
Justice Samuel Alito asked Paul Clement, the lawyer defending DOMA’s constitutionality, what the purpose of the law was. Was Congress hoping to foster traditional marriage? Or was it to provide economic benefits to households that function as a single family unit?
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