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supreme courtFive Supreme Court Justices — including good ole Swing Vote Sweet Chariot, Anthony Kennedy — questioned whether the Defense of Marriage Act was indeed constitutional today during the landmark Windsor v. United States case.

Two lower courts have already ruled the Defense of Marriage Act, which bars same-sex couples from receiving over 1,000 federally-regulated benefits, unconstitutional.

Back in February 2011, the Obama administration also deemed the law unconstitutional and officially stopped defending it in court. The administration, however, continues to enforce DOMA, effectively placing it on both sides of the battle.

Paul D. Clement, who is defending DOMA for the House of Republicans seeing that the White House has backed out, argued that when lawmakers originally passed the law in 1996, they were concerned about the  “redefinition of an age-old institution.”

Justice Kennedy disagreed with the lawyer’s assertion that DOMA simply creates a single definition of marriage for federal purposes, noting that it was “not really uniformity” since same-sex couples are denied access to federal benefits that traditional couples have.

“There are two kinds of marriage,” said Justice Ruth Bader Ginsburg, who argued that the federal law created a two-tiered system of marriage. “Full marriage and the skim milk marriage.”

Edith “Edie” Windsor, her attorneys argued, was unfairly forced to pay more than $363,000 in federal estate taxes after the death of her spouse, Thea Spyer, as the IRS did not recognize Windsor as a surviving spouse under DOMA. Windsor’s attorney claimed this was in violation of the equal protection principles guaranteed by the U.S. Constitution.

“Thea and I were legally married. We loved and cared for each other for over 40 years. We deserve to be treated equally by our country, and not like second-class citizens,” Windsor, 83, said. “While Thea obviously can’t be here today, I know how proud she would be to see how far we have come for us to be standing on the steps of the Supreme Court asking for fair treatment of our marriage.”

If the Supreme Court strikes down the challenged part of DOMA, married same-sex couples in the nine states (and the District of Columbia) where same-sex marriage is legal would start to receive federal benefits.

The part of the law that says states don’t need to recognize same-sex marriages from other states is not before the court. That question would potentially be settled by the Prop 8 case heard yesterday.

In both cases, Justice Kennedy is faced with two of his primary concerns: gay rights and states’ rights. Whereas in the Prop 8 case there’s a larger question over the validity of the case, many observers feel that Kennedy will vote to strike down DOMA.

(h/t: The New York Times, ACLU)

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