Chief Justice John Roberts Skeptical of DOMA’s Constitutionality, Purpose

A majority of Supreme Court justices appeared skeptical of the constitutionality of the Defense of Marriage Act (DOMA) on Wednesday morning.

Wednesday was the second day the high court heard arguments dealing with same-sex marriage case. Photo: Rich Renomeron/Flickr

The U.S. Supreme Court was expected to decide on Wednesday whether it was constitutional for the government to refuse to recognize gay unions that had been recognized by the states.

Justice Anthony Kennedy, who previously claimed that the children of those couples “want their parents to have full recognition and legal status,” was troubled by the fact that the Defence of Marriage Act doesn’t suppose recognize of same-sex unions that are already recognized by states.

“When the federal government has 1,100 laws, which means in our society the federal government is intertwined with citizens’ day-to-day lives,” Kennedy said, then Congress is doing more than simply ensuring a uniform definition of marriage.

According to the justice, DOMA was only helping states “if they do what we want them to do.” He also mentioned the law applied to states “where voters have decided” to legalize gay unions and said he believed there was injury to same-sex couples whose marriages were not recognized by the federal government.

Section 3 of DOMA, at issue in Wednesday morning’s case, claims that “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife” for purposes of “any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States.”

Supreme Court Chief Justice John Roberts reacted incredulously to the claim that Senators or President Obama may have been motivated to pass DOMA by animus or moral objection to same-sex couples.

As The Huffington Post reports, it was a window into his apparent belief that the U.S. is simply not a place burdened by such things as bigotry or racism.

Roberts has previously dismissed the need for voting rights protections or affirmative action, viewing the world as ‘without the sort of racism that might require such remedies.’

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” he offered in one case about school segregation, Parents Involved in Community Schools v. Seattle School District No. 1.

“It’s a sordid business, this divvying us up by race,” he said in a voting rights case, League of United Latin American Citizens v. Perry.

Solicitor General Donald Verrilli said to Roberts, trying to persuade him that members of Congress are capable of impure thoughts, that “this statute is not called the Federal Uniform Marriage Benefits Act; it’s called the Defense of Marriage Act.”

Besides, Verrilli went further poining out to Roberts to the legislative record. Dan Amira at New York magazine notes that the record says explicitly:

“The Committee briefly discusses four of the governmental interests advanced by this legislation: (1) defending and nurturing the institution of traditional, heterosexual marriage; (2) defending traditional notions of morality.”

It goes on: “Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality. This judgment entails both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.”

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