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.
Chief Justice John Roberts also appeared to be trying to frame an argument about federal power to draw Kennedy in a more conservative direction.
It is still too early to know with certainty which way Kennedy will ultimately go, and whether his expected swing vote will align with the high court’s liberals or conservatives.
But it is clear from his comments that he is deeply concerned about the impact of the federal statute.
DOMA restricts the receipt of federal marriage benefits to opposite-sex couples by defining marriage as a union between one man and one woman.
By using that traditional definition of marriage, same-sex spouses who are legally married in states permitting gay marriage are blocked from receiving the same 1,100 benefits available to opposite-sex spouses.
Unlike every heterosexual married couple in the United States, married homosexuals cannot file joint tax returns, receive spousal Social Security benefits, or qualify for family health insurance for married federal employees.