By Sam Baker - 03/27/13 09:00 AM EDT
The Supreme Court on Wednesday will hear a second day of oral arguments in its landmark cases on same-sex marriage.
Wednesday’s case is a challenge to the Defense of Marriage Act (DOMA), the federal law that prohibits same-sex couples from receiving certain federal benefits.
Kennedy signaled during Tuesday’s arguments that he is not ready to prohibit states from enacting their own bans on same-sex marriage.
While that was a setback for same-sex marriage advocates in Tuesday’s case, Kennedy’s preference for state control is also seen as a sign that he would be open to striking DOMA.
Congress passed DOMA in 1996, when public opinion was still solidly against same-sex marriage. The law says same-sex couples can’t be considered “married” for the purposes of federal law, even if they live in a state that recognizes same-sex unions.
As public opinion has swung in favor of allowing same-sex marriage, many Democrats have turned on DOMA. Former President Clinton, who signed DOMA into law, has now said the court should strike down the law.
Defining and regulating marriage has traditionally fallen to the states, and critics say DOMA was an unwarranted federal intrusion solely for the purposes of discrimination.
The lawsuit before the court Wednesday was filed by Edith Windsor. Windsor, now 83, married her longtime partner in Canada; the two then moved to New York. Her wife died and left Windsor the house they shared.
But because the pair was never legally married in the eyes of the federal government, Windsor now owes hundreds of thousands of dollars in taxes on the house — taxes an opposite-sex couple in the same situation would not have to pay.
If the Supreme Court ultimately strikes down DOMA, each state would still have the ability to define marriage for itself. The federal government could not withhold federal benefits from same-sex couples in states that recognize same-sex marriage.
Former Solicitor General Paul Clement is defending DOMA on behalf of Speaker John Boehner and a group of other House Republicans.
Clement argues in his briefs that only opposite-sex couples produce unwanted pregnancies, and that Congress wants marriage to serve as an incentive for the biological parents of unplanned children to raise those children together.
The court will hear an hour of oral arguments on the merits of DOMA, and 50 minutes of debate over whether Boehner’s group has legal standing to defend the law.
Normally, the Justice Department defends federal laws when they’re challenged in court. But the Obama administration decided not to defend DOMA, arguing instead that it should be struck down.
So, Boehner’s group stepped up to defend the law. The Supreme Court has previously said, however, that individual lawmakers can’t go to court over statutes Congress passes, and Boehner’s group does not represent the institutional view of Congress.
House Democratic Leader Nancy Pelosi (D-Calif.) has criticized Boehner for spending roughly $3 million to defend DOMA in the courts.