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Supreme Court justices question Defense of Marriage Act

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Albany/HV: Supreme Court hearings on same-sex marriage continue
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The Supreme Court wraps up two landmark days of arguments into same-sex marriage, with a hearing on the Defense of Marriage Act. As our Washington, D.C. bureau reporter Michael Scotto reports, a majority of justices appeared open to striking down part of the 1996 law.

WASHINGTON, D.C. -- As hundreds of people cheered outside the Supreme Court, Edith Windsor couldn't help but sound ecstatic about the day's oral arguments.

“I think it went great. I think it went beautifully,” Windsor said.

Windsor is the plaintiff in the case challenging a key part of the Clinton-era Defense of Marriage Act, a federal law that prevents legally married same-sex couples from receiving the same benefits as heterosexual ones.

On Wednesday, the four liberal justices and swing vote, Anthony Kennedy, appeared to question whether that is constitutional.

“You're saying, no, state said two kinds of marriage; the full marriage and then this sort of skim milk marriage,” Justice Ruth Bader Ginsburg said.

That issue of equal protection came up throughout the oral arguments. But for Justice Kennedy, the problem seemed to be that the federal government is interfering with what has always been a state institution.

Justice Anthony Kennedy said, “You are at real risk of running in conflict with what has always been thought to be the essence of the state police power.”

But the lawyer defending DOMA said the law was only meant to create uniformity and denied that it interferes with states' rights.

“No state loses any benefits by recognizing same-sex marriage. Things stay the same. What they don't do is they don't sort of open up an additional class of beneficiaries under their state law for, that get additional federal benefits,” said Paul Clement, a lawyer for supporters of DOMA.

The first part of the oral arguments focused on whether the court should actually be hearing this case in the first place. That's because the Obama Administration has stopped defending the Defense of Marriage Act. The administration, though, is still enforcing it, a point that annoyed conservative justices.

Justice Scalia said, “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.”

The court is expected to issue its opinion by this summer. ClientIP:, UserAgent: CCBot/2.0 ( Profile: TWCSAMLSP