Liberal justices, Kennedy appear to favor ending part of DOMA

WASHINGTON — The Supreme Court wrapped up a second day of arguments on gay marriage, as Justice Anthony M. Kennedy and the court’s liberal justices appeared headed toward striking down the part of the Defense of Marriage Act that denies federal benefits to legally married gay couples.

Kennedy repeatedly said the states, not the federal government, have the primary role in deciding who is married. The question is “whether the federal government has the authority to regulate marriage,” he said.

Meanwhile, the court’s four liberal justices said the 1996 law is flawed and discriminatory because it treats married same-sex couples differently than other married couples.

FULL COVERAGE: Battle over gay marriage

Justice Ruth Bader Ginsburg said she too found the discrimination troubling. Some couples can have “full marriage” under the law, but others who are gay are left with “skim-milk marriage,” she said.

Justice Sonia Sotomayor said the law creates two classes of married couples. “You are treating married [gay] couples differently,” she said. “You are saying that New York’s married couples [who may be gay] are different than Nebraska’s,” she said, even though both are legally married under state law.

She questioned whether the government “can create a class they don’t like -- here homosexuals --and ... decide they get different benefits on that basis.”

Because of the federal law, about 130,000 same-sex couples are denied benefits such as filling a joint tax return or receiving Social Security survivor benefits.

Former Solicitor General Paul Clement, defending DOMA, said Congress passed the law to set a “uniform” definition of marriage. The government “has a powerful interest in uniformity,” he said.

PHOTOS: Supreme Court considers gay marriage

But Justice Elena Kagan objected. She said the uniform rule prior to DOMA was that persons who are married in the state are married under federal law. “This was different,” she said. “This statute does something that had not been done before.” It excluded recognition of some married couples, she said, because of “a moral disapproval of homosexuality,” quoting from a House committee report.

U.S. Solicitor General Donald Verrilli said the law should be struck down because it denies same-sex couples the equal protection of the laws. “Section 3 [of the law] is discrimination. It cannot stand,” he said, in light of the nation’s “fundamental commitment to equal treatment” under the law.

Chief Justice John G. Roberts Jr. and Justice Antonin Scalia spoke in defense of the law. Roberts said he did not see how gays and lesbians can be considered a minority group that suffers discrimination.

Gays have a “powerful lobby” on their side, he said. “As far as I can tell, political figures have been falling all over themselves” to voice their support for gay marriage, he said.

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