Supreme Court Justice Anthony Kennedy is seen as a potential swing vote on DOMA, a gay marriage law that bars federal benefits to same-sex couples. He repeatedly raised concerns in oral arguments Wednesday.
The US Supreme Court took up its second major gay-rights case in two days on Wednesday when it heard argument in a potential landmark case testing whether the 1996 Defense of Marriage Act violates the equal protection rights of gay and lesbian married couples.
During nearly two hours of argument, the justices appeared to divide along traditional liberal-conservative lines, with Justice Anthony Kennedy residing – once again – at the center of the nine-member court.
If Justice Kennedy’s comments and questions during the session are an accurate indication, the federal statute may well be struck down.
Kennedy repeatedly raised concerns that the federal statute was in conflict with the traditional power of the states to regulate marriage.
The justice took exception to a comment by a lawyer defending the statute that all the Defense of Marriage Act (DOMA) did was define marriage for purposes of federal law.
Kennedy said the definition applied in 1,100 different contexts, which meant that federal influence was “intertwined with the citizens’ day-to-day life.”
That, he said, put the federal government at a “real risk of running in conflict” with core powers retained by the states, including the power to regulate marriage, divorce, and child custody.
The lawyer, former Solicitor General Paul Clement, said Congress was simply seeking uniformity in the provision of federal benefits, not to regulate marriage at the state level.
Kennedy was unconvinced. “The question is whether or not the federal government, under our federalism scheme, has the authority to regulate marriage,” he said.
At various points during the argument, Justices Ruth Bader Ginsburg and Elena Kagan, both members of the court’s liberal wing, offered comments in support of Kennedy’s concerns.
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