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Monday, December 5, 2016

For the second consecutive day, the Supreme Court heard a case in which marriage equality advocates argued that state laws banning same-sex matrimony deserve “heightened scrutiny,” and should be struck down if the Court finds they violate the Constitution. Today’s argument in Windsor v. United States focused on the Defense of Marriage Act (DOMA), the federal law that denies same-sex couples the same rights that heterosexual married couples enjoy.

Edith Windsor — who married Thea Spyer, her partner of 40 years, in Canada in 2007 — is suing the government for the $363,000 she had to pay in estate taxes after Spyer died. Married heterosexual couples do not pay such taxes on assets inherited from spouses.

Justice Anthony Kennedy — who as in the Proposition 8 case heard yesterday is expected to be the deciding vote in the DOMA case, if the court finds it has jurisdiction — seemed to express that DOMA may make the federal government too “intertwined with citizens’ daily lives.”

You can listen to the argument here and read the transcript here.

For the second day in a row, the scene in front of the Court was chaotic with supporters and opponents of equal marriage energetically demonstrating. On social media, tens of thousands joined in by showing their support of same-sex couples by using the “equal” sign as their profile picture.

Also for the second day in row, the opening argument revolved around jurisdiction. Today’s argument took on the complex issues presented by the president’s decision to have his Justice Department continue to enforce a law that he has decided is not Constitutional.

Two conservative justices sprayed criticism at President Obama for deciding that the Justice Department would not defend DOMA in front of the Court.

“If he has made a determination that executing the law by enforcing the terms is unconstitutional, I don’t see why he doesn’t have the courage of his convictions and execute not only the statute, but do it consistent with his view of the Constitution, rather than saying, oh, we’ll wait till the Supreme Court tells us we have no choice,” Chief Justice John Roberts said.

The Court appointed attorney Vicki Jackson to argue that they did not have jurisdiction to hear the case. Being forced to do this did not please Justice Antonin Scalia.

“I’m wondering if we’re living in this new world where the attorney general can simply decide, yeah, it’s unconstitutional, but it’s not so unconstitutional that I’m not willing to enforce it,”  he said. “If we’re in this new world, I don’t want these cases like this to come before this Court all the time.”

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