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Gay Marriage Cases Now in Justices’ Hands

Supreme Court demonstration; photo by Bill Clark/CQ Roll Call

Same-sex marriage supporters rally Wednesday outside the Supreme Court. Photo By Bill Clark/CQ Roll Call.

The Morning Line

For supporters and opponents of same-sex marriage, the arguments are over, and now the waiting begins.

In the meantime, there is much speculation about how the Supreme Court will rule on the cases heard Tuesday and Wednesday, based on the various lines of questioning from the justices.

Wednesday’s arguments dealt with the Defense of Marriage Act, also known as DOMA, a 1996 law that defines marriage as between one man and one woman and prevents same-sex couples from receiving federal marriage-related benefits.

As with Tuesday’s case involving Proposition 8, California’s voter referendum-approved ban on same-sex marriage, there also appeared to be a consensus among court-watchers on Wednesday’s arguments about DOMA.

In the case of DOMA, the analyses suggest that five justices are prepared to strike down the law.

Justice Anthony Kennedy, widely seen as the swing vote on the court, questioned whether the federal government might have overstepped with DOMA, regulating an area traditionally reserved for the states. Doing so, Kennedy said, poses a “real risk of running in conflict with what has always been thought to be the essence of the state police power, which is to regulate marriage, divorce, custody.”

Justice Ruth Bader Ginsburg, meanwhile, suggested that DOMA effectively created a two-tiered system of marriage: “the full marriage, and then this sort of skim milk marriage.”

On Tuesday, most court observers agreed that the justices would not hand down a wide-ranging ruling to impose nationwide recognition of same-sex marriage.

But if recent history is any example (see: last year’s decision on the Affordable Care Act), then the safe bet is waiting for June, when the official word will likely come from the court.

Kwame Holman started off our coverage on Wednesday’s broadcast with a report from outside the court, which was less crowded than for Tuesday’s hearing on Proposition 8. Those who gathered Wednesday were mostly supporters of same-sex marriage.

The NewsHour spoke with Nicole Connolly, a New York teacher married to a woman who is a captain in the U.S. Marine Corps. “I am here for housing allowance. I am here for medical. I am here for death benefits. I’m here for next of kin qualifications, a plethora of reasons,” said Connolly.

Ray Suarez and Marcia Coyle of the National Law Journal then examined some of the key exchanges inside the court.

Coyle noted that some of the justices raised questions about President Barack Obama’s decision not to defend DOMA but to still enforce the law. “And there was some hostility,” Coyle said. “Chief Justice Roberts said, well, if the president decided that this law was unconstitutional, and yet is going to enforce it until the Supreme Court says otherwise, why didn’t the president have the courage of his convictions, if he believes the law is unconstitutional, and not enforce it?”

Suarez and Coyle also looked at an exchange between Justice Elena Kagan and Paul Clement, the lawyer arguing in support of DOMA on behalf of a group of House Republican lawmakers.

RAY SUAREZ: Did it sound like Paul Clement had many supporters elsewhere on the bench for his reading of why this law exists in the first place?

MARCIA COYLE: That’s a hard read.

I think that at least four justices, or possibly five, have a problem with his arguments. Justice Kagan was getting at the second major issue in this case, and that’s whether the law discriminates under the Equal Protection Clause guarantee of the Fifth Amendment.

She wasn’t satisfied with his answer. In fact, she followed up by reading specifically from the House report on DOMA where the legislators said that they were expressing their moral disapproval of homosexuality. So she was making a point that it appeared there was another reason.

And Mr. Clement’s response is that maybe some were motivated that way, but — and if the court believes that the whole statute was based on that, then it should strike it down. But he claims there are — that was — it’s really not sufficient, because there are many other interests that justify DOMA.

Judy Woodruff spoke with Mary Bonauto, special counsel for Gay and Lesbian Advocates and Defenders, and Ken Klukowski, director of the Center for Religious Liberty at the Family Research Council.

Bonauto said equal protection concerns would ultimately hold more weight when it came to deciding DOMA.

“We have never had a situation where the Congress has wiped out a whole class of marriages for purposes of every federal law and program, and that’s what DOMA is,” Bonauto said. “In the context of any particular program, yes, there’s play in the joints, but there’s never been a law that just said, oh, these people who were actually married by a state are not married for any federal purpose.”

Klukowski contended that DOMA represents a legitimate exercise of Congress’ authority.

“Who can get married is a state issue,” he said. “But what federal benefits, mainly, usually entitlements, what federal benefits go to which sort of unions, that’s a legitimate exercise of federal power, so long as it’s one of Congress’ powers in Article One, Section Eight of the Constitution.”

Watch the discussion here or below:

If you missed our coverage from Tuesday’s arguments and the debate over Proposition 8, you can find it all by going to the NewsHour’s Supreme Court page.

Also, a quick programming note for our readers: The Morning Line will be off Friday and next week, returning Monday, April 8.


Mr. Obama will hold an event Thursday with law enforcement officials and mothers in support of gun control to mark 100 days since the elementary school shooting in Newtown, Conn.

Meanwhile, Mayors Against Illegal Guns has released the first television ad featuring families of Sandy Hook Elementary School shooting victims. The spot presses Connecticut’s legislature to adopt an expanded ban on assault weapons and high capacity magazines.

While Mr. Obama pressures Congress to adopt gun control legislation when it returns from recess, Roll Call reports that “a little-noticed Senate vote” in the wee hours of Saturday’s vote-a-rama on the non-binding budget resolution may not bode well for Mr. Obama’s hopes of passing tougher gun legislation. An amendment from Sen. Mike Lee, R-Utah, requiring two-thirds approval of any gun legislation didn’t garner enough votes to pass, but six Democrats from gun-friendly states backed it, which should tell Mr. Obama something about the Senate’s support for gun rights.

If Majority Leader Harry Reid, D-Nev., can’t round up the 60 votes needed to pass Democrats’ legislation, Sen. Chuck Grassley, R-Iowa, may be ready with what one GOP aide called “a break-the-glass kit.” Grassley, the only Republican on the Judiciary Committee to support tougher penalties for straw purchases, is drafting an alternative gun control bill, presumably without the expanded background checks that he has opposed and which are central to the Democrats’ bill.


  • Ashley Judd has decided not to challenge Senate Minority Leader Mitch McConnell, R-Ky., in 2014.

  • The Boston Globe reports Democratic Reps. Ed Markey and Stephen Lynch tangled over health care in the first televised debate between the two candidates competing for the party nomination in the Massachusetts special election race for the U.S. Senate seat vacated by John Kerry.

  • Politico’s Manu Raju reports that Mr Obama will continue his outreach to Senate Republicans next month, attending a dinner hosted by Sen. Johnny Isakson of Georgia.

  • North Carolina’s Kay Hagan became the latest Democratic senator to announce support for same-sex marriage.”We should not tell people who they can love or who they can marry,” Hagan told the Raleigh News & Observer.

  • FreedomWorks is out with a new online ad attacking “Obamacare” for cuts to Medicare Advantage. In the ad, an elderly man says, “Congress, keeps your hands off my Medicare.”

  • Sen. Charles Schumer, D-N.Y., told reporters while touring the U.S.-Mexico border that the bipartisan Senate group is “90 percent” done with its draft of legislation to revamp the country’s immigration law.

  • The Washington Post has an update on the effects of the sequester on federal agencies.

  • Rick Santorum ventured to South Carolina Lowcountry on Wednesday to bolster the social conservative credentials of congressional candidate Curtis Bostic ahead of his special election runoff against Mark Sanford.

  • Montana Sen. Max Baucus’ split from his fellow Democrats on tax policy and the budget isn’t all that shocking given that he’s up for re-election in a state Mr. Obama lost by 13 percentage points. Bloomberg’s Richard Rubin dives into the interests of the senate finance chair.

  • Mother Jones details the “Clinton Cash Freeze” keeping top donors from opening their checkbooks to promising Democratic governors until Hillary Clinton decides about a presidential run in 2016.

  • Five of the Supreme Court justices have officiated at marriages.

  • Here’s a pretty neat interactive on drone strikes since 2004.

  • New York City Council speaker and 2013 mayoral candidate Christine Quinn seems to have made some enemies. The New York Times has the tale of political revenge.

  • Boston Mayor Thomas Menino is expected to announce Thursday that he won’t seek a sixth term.

  • Michigan’s right-to-work legislation takes effect Thursday, but what that means for labor unions and the state’s economy will take a little longer to emerge.

  • Today’s tidbit from NewsHour partner Face the Facts USA: While the income gap between rich and poor has widened over the past half century, it’s actually the income gap between the rich and the middle class that has widened the most.



Meena Ganesan and Christina Bellantoni contributed to this report.

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