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.
“DOMA was not enacted for any purpose of uniformity, administration, caution, pausing, any of that,” US Solicitor General Donald Verrilli told the court.
“It was enacted to exclude same-sex, lawfully married couples from federal benefit regimes based on a conclusion that was driven by moral disapproval,” he said.
The solicitor general added: “I think it’s time for this court to recognize that this discrimination, excluding lawfully married gay and lesbian couples from federal benefits, cannot be reconciled with our fundamental commitment to equal treatment under law.”
Coming on the heels of Tuesday’s oral argument on California’s Proposition 8 ban on same-sex marriage, the high court’s sessions over the past two days mark a historic reexamination of gay rights in America.