In what may well be a big victory for America’s gays and lesbians, a majority of judges of US Supreme Court has voiced sharp criticism over a key provision of Defence of Marriage Act (DOMA) relating to discrimination in federal benefits.
While the apex court may or may not come out with a definitive pronouncement on the larger issue of constitutional right to same-sex marriage, five of the nine judges came down hard on a section DOMA that withholds federal benefits from gay married couples, hinting that they could strike down the provision.
The apex court completed two days of oral arguments in two landmark cases relating to gay marriage — DOMA and California’s Proposition 8 — but it is expected to deliver its ruling only in June.
America’s highest court right now is divided almost equally with four conservative judges and four liberal judges, with one, Justice Anthony Kennedy, termed the “swing vote”. Although a conservative appointed by Republican President Ronald Reagan, Kennedy has come to be regarded as a moderate who has voted with the liberal judges in several key cases.
Kennedy, like four liberal justices, expressed deep skepticism as to whether DOMA is constitutional during Wedn
esday’s hearing of arguments.
He felt federal law imposes its definition of marriage, infringing on role of States in defining marriage, notably several States that have legalised gay marriage. Nine of 50 States and District of Columbia now allow same-sex marriage.
The case was brought by 83-year-old Edie Windsor, a New Yorker who married Thea Spyer, her female partner of more than 40 years, in Canada in 2007. When she died in 2009, Spryer left her estate to Windsor, but the US Government slapped an estate tax of $363,053 on her - something she would have been spared if her married partner had been a man.
After the hearing, Windsor got a hero’s welcome from large crowds of gays and lesbians and their liberal supporters outside the court. And, fighting tears, Windsor announced, “I think it went beautifully. I thought the justices were gentle... they were direct, they asked all the right questions, but 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.”
Passed by US Congress and signed by former President Bill Clinton in 1996, DOMA defines marriage as union between a man and woman, thus prohibiting federal recognition of same-sex marriages. Obama administration believes this law is unconstitutional and its Justice Department has stopped defending it in courts, but have directed federal agencies to continue to comply with the law.
During the arguments, Chief Justice John Roberts attacked the dual policy, sharply criticizing President Obama. “I don’t see why he doesn’t have the courage of his convictions,” Roberts said while noting Obama’s decision to continue following the law, even though he believes it is unconstitutional. Another leading conservative, Justice Antonin Scalia, also came down hard on the administration.