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In Second Day on Gay Marriage, Supreme Court Takes Up DOMA

Supreme Court demonstration; photo by Melina Mara/The Washington Post via Getty Images

Kris and Lyssa White, a married couple from Manassas, Va., kiss Tuesday in front of the Supreme Court protesting for marriage equality. Photo by Melina Mara/The Washington Post via Getty Images.

The Morning Line

For a second day, the topic’s the same. The Supreme Court will again examine the constitutionality of a case related to same-sex marriage, this time on whether a federal law violates the Fifth Amendment’s equal protection clause.

However, Wednesday’s challenge to the Defense of Marriage Act, known as DOMA, presents a more subdued day at the court, one lacking the level of fanfare seen Tuesday, which highlighted supporters and proponents of California’s Proposition 8 ban on same-sex marriage.

Inside the court Wednesday, the conversation before the nine justices will have a more technical focus, examining the story of Edith Windsor, an 83-year-old New Yorker and widow who married her female partner in Canada, a marriage also recognized by the state of New York. She now seeks federal recognition of their marriage so she won’t have to pay $363,000 in estate taxes because the federal government does not recognize their marriage as valid. A survivor in a heterosexual marriage would not have to pay this tax.

DOMA, signed by former President Bill Clinton in 1996, leaves recognition of same-sex marriage up to individual states. It allows the federal government not to recognize gay marriages for taxes, entitlement programs or other legal purposes, and it allows states that don’t support gay marriage to ignore the unions as well.

The potential outcomes of this case, compared with Tuesday’s, could be far less reaching. While the Proposition 8 case gives the court an opportunity to impose nationwide recognition of same-sex marriage, the DOMA case disputes application of federal law.

Nationwide recognition was summed up as exceedingly unlikely by a number of court-watchers Tuesdays, including the website SCOTUSBlog, known for its live and thorough coverage of the court. The site tweeted:

Even the name of the case, United States vs. Windsor, forces more legal explanations. The United States government sides with Windsor in supporting an end to what it calls discrimination on marriage for gay couples. Because the attorney general’s office chose not to defend the law in this case, a group called the Bipartisan Legal Advisory Group of the U.S. House of Representatives, composed mostly of mostly Congressional Republicans, will.

Attorney Paul Clement will present BLAG’s side in court, repeating the matchup between himself and Solicitor General Donald Verrilli during the Affordable Care Act case.

NPR’s Supreme Court correspondent Nina Totenberg noted on Wednesday’s “Morning Edition” that neither Clement nor a number of congressional leaders would agree to interviews on the DOMA case.

Marcia Coyle of the National Law Journal will visit the NewsHour again Wednesday night to describe the case in full. To hear her summary of Tuesday’s arguments regarding Proposition 8, including exchanges with justices about alleged harm caused by gay marriage and whether the institution of marriage exists for the purpose of procreation, watch here or below:


Gwen Ifill followed that conversation by hosting a debate on Proposition 8 with California Attorney General Kamala Harris, an opponent of the law, and Austin Nimocks, who was part of the legal team of Alliance Defending Freedom, which supported the California measure in court.

Find the debate is here or below.


We also have audio of the arguments here. The court chose to release the audio a few hours after the close of Tuesday morning’s session, a rare decision saved only for the most important cases. The court will post same-day audio of Wednesday’s arguments.

Our coverage spanned both coasts this week. On Monday — ahead of oral arguments, NewsHour correspondent Spencer Michels spoke with gay rights supporters in San Francisco marching from the Castro District to City Hall.



  • A new poll from The Washington Post-ABC News shows a majority of Americans favorably view President Barack Obama and the Supreme Court. For Congress, not so much — though the legislative body’s positive impression among Hispanics is growing, to more than 50 percent favorability.
  • Taking his first step back into the spotlight after resigning as the director of the CIA in November, Gen. David Petreaus apologized for the scandal that led him to resign, speaking at a USC dinner Tuesday night honoring ROTC students and veterans. “Needless to say, I join you, keenly aware that I am regarded in a different light now than I was a year ago,” he said. He authored an op-ed in Wednesday’s Wall Street Journal about helping veterans reintegrate into civilian life.
  • Mr. Obama named Julia Pierson as the first female director of the U.S. Secret Service on Tuesday. Pierson had served as the agency’s chief of staff. Her appointment comes as the Secret Service looks to rebuild its image following last year’s prostitution scandal.
  • On Tuesday, Mr. Obama also signed the six-month continuing resolution approved last week by Congress. The $984 billion spending plan will fund the government through the end of September.
  • North Dakota Republican Gov. Jack Dalrymple signed into law Tuesday the nation’s most restrictive abortion law, which bans abortions as soon as a fetal heartbeat is “detectable,” which can be as early as six weeks.
  • Organizing for Action is stepping into the push for campaign finance reform in New York, advocating a matching fund system. OFA is expected to hold a conference call Wednesday with Gov. Andrew Cuomo, Attorney General Eric Schneiderman and grassroots supporters of the “fair elections” fight.
  • Homeland Security Secretary Janet Napolitano announced Thursday her opposition to email, text messaging and tweeting.
  • Add Montana’s Sen. Jon Tester to the list of Red State Democrats who have announced support for gay marriage.
  • An automated survey from the left-leaning Public Policy Polling finds the race for South Carolina’s 1st Congressional District may be close between Democrat Elizabeth Colbert Busch and former GOP Gov. Mark Sandford.
  • Former New Jersey Democratic Gov. Jim McGreevey’s time in office has helped him relate to the felons he works with. “For many of them, it was a bag of dope; for me, it was politics and political survival and enhancement,” he told Politico. McGreevey’s life after politics is the subject of Alexandra Pelosi’s latest documentary, “Fall to Grace,” which airs Thursday on HBO.
  • SEIU is debuting $300,000 worth of cable TV ads Wednesday pushing for a comprehensive immigration overhaul.
  • The Fix drew our attention to a National Conference of State Legislatures map that compiles all of the states’ voter ID laws, with a few updates on the most recent and pending bills.
  • Mr. Obama and Secretary of State John Kerry showed off their soccer talents in separate events Tuesday. The president bounced a ball on his head during an event at the White House honoring the L.A. Galaxy, last season’s Major League Soccer champion, and the Los Angeles Kings, the reigning Stanley Cup champion. Kerry, meanwhile, demonstrated his skills at “The Beautiful Game,” heading a ball at a meeting with the Afghan women’s soccer team during a trip to Kabul.
  • Democracy for America says it will spend more than $750,000 this year to unseat Republicans in vulnerable districts in the Virginia House of Delegates. As part of its “Purple to Blue Project,” the Burlington, Vt.-based group founded by former Gov. Howard Dean, will support five candidates, including activist Jennifer Boysko and retired Air Force officer John Bell for two seats in Northern Virginia. In 2014, DFA plans to go after seats in state legislatures in Pennsylvania, Michigan and Ohio. “Winning these state races is how you win on the national level,” Dean said in a conference call Tuesday.
  • In what Politico reports is an unusual move, Sen. Richard Shelby, R-Ala., has purged staff members from Senate Appropriations Committee.
  • David Miliband, brother of the leader of Britain’s Labour Party and himself a prominent member of the House of Parliament, is stepping down and moving to the U.S.
  • Beyonce got in on the marriage equality on Facebook action Tuesday with a post to the 44.6 million people who like her page: “If you like it you should be able to put a ring on it.”
  • Today’s tidbit from NewsHour partner Face the Facts USA: The longer immigrants remain in the United States, the more likely they are to own a home, and of those who arrived befoe 1980, their home ownership rate is higher than that of native-born Americans.


  • Ray Suarez sat down with author Denise Kiernan to talk about her book, “The Girls of Atomic City,” which is about a group of women who worked on a secret mission during World War II to enrich fuel for the first atomic bomb used in combat.
  • Margaret Warner spoke with NPR’s Howard Berkes about a new investigation looking at the dangerous working conditions in grain storage bins.
  • “Pandora’s Lunchbox” author Melanie Warner will participate in a live chat about processed food Wednesday at 1 p.m. ET. Tweet comments to @NewsHour using #foodchat.









Cassie M. Chew, politics desk assistant Simone Pathe and Christina Bellantoni contributed to this report.

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