The federal Defense of Marriage Act could soon be history after a majority of the Supreme Court raised concerns yesterday about the law’s constitutionality.
“There are two kinds of marriage,” Justice Ruth Bader Ginsburg said, railing against the controversial statute. “Full marriage and the skim-milk marriage.”
Swing-vote Justice Anthony Kennedy joined Ginsburg and three other liberal justices in raising questions about the 1996 statute, which defines marriage as the union of a man and a woman for the purposes of more than 1,000 federal laws and programs.
Kennedy said the law appears to intrude on the power of states that have chosen to recognize same-sex marriages.
“The question is whether or not the federal government under a federalism system has the authority to regulate marriage,” Kennedy said during oral arguments.
The law came under fire when New Yorker Edie Windsor sued the federal government over $363,000 in estate taxes she was forced to pay after her same-sex spouse, Thea Spyer, died in 2009.
They were married in 2007 in Canada.
Windsor’s supporters include President Obama, Attorney General Eric Holder and former President Bill Clinton, who said he had a change of heart after signing the bill when he was in office.
Windsor, 83, was cheered like a rock star outside the Supreme Court when oral arguments ended. “I thought it went beautifully,” said Windsor, who wore the diamond brooch Spyer gave her decades ago in place of an engagement ring to hide their relationship.
“I didn’t feel any hostility or any sense of inferiority. I felt we were very respected, and I think it’s going to be good.”
The Defense of Marriage debate marked Day 2 of Supreme Court arguments on same-sex marriage.
A day earlier, justices heard arguments on Proposition 8, a voter-approved ban on gay marriage in California.
The same-sex-marriage cause got a high-profile shout-out yesterday from singer Beyoncé, who posted online a handwritten note paraphrasing her “Single Ladies” lyrics.
“If you like it you should be able to put a ring on it,” she wrote.
The Defense of Marriage law defines marriage as a heterosexual union, meaning gay couples legally married under state law are considered unmarried under federal law.
They can’t file joint federal tax returns, claim a spousal exemption from estate taxes or collect Social Security survivor’s benefits.
The court is expected to rule on both cases in June.
Additional reporting by S.A. Miller