Former U.S. Supreme Court Justice Sandra Day O'Connor expressed doubts that the nation's highest court should have ruled on the controversial Bush v. Gore case that decided the outcome of the 2000 presidential election.

"It took the case and decided it at a time when it was still a big election issue," O'Connor told the Chicago Tribune editorial board on Friday. "Maybe the court should have said, 'We're not going to take it, goodbye.'"

The Tribune has more from O'Connor:

The case, she said, "stirred up the public" and "gave the court a less-than-perfect reputation."

"Obviously the court did reach a decision and thought it had to reach a decision," she said. "It turned out the election authorities in Florida hadn't done a real good job there and kind of messed it up. And probably the Supreme Court added to the problem at the end of the day."

O'Connor, who was appointed to the court by Ronald Reagan in 1981, was part of the 5-4 majority deciding to stop the recount in the crucial battleground state of Florida.

In a Supreme Court test of whether a company can be granted a patent on the genes in the human body, a majority of the justices indicated during Monday's oral arguments that the court is likely to rule that a human gene can’t be patented. 

It would be one thing, several of the justices said during Monday’s oral arguments, for a company to seek a patent on a test for breast cancer that was developed by analyzing a human gene, but it would be going too far to be awarded a patent on the gene itself.

"What's the difference between snipping off a piece of the liver or kidney, and seeking a patent on that, and seeking a patent on a piece of a gene?" asked Justice Sonia Sotomayor.

Justice Samuel Alito made a different analogy, to someone seeking a patent on a plant found in the Amazon rain forest that bore leaves containing a cancer cure. "You could patent the process used to get the chemical out and the use of the result, but you cannot patent the plant," he said. 

Stelios Varias / Reuters file photo

The U.S. Supreme Court in Washington

The case, Association for Molecular Pathology v. Myriad Genetics, involves a test that has helped guide more than a million women in their medical decisions. The test can determine whether the composition of their genes makes them more likely to get breast or ovarian cancer.

Myriad Genetics, a Utah company, owns patents on two parts of human genes known as BRCA 1 and BRCA 2, named for the first two letters of the words breast and cancer.

Women with mutations in those genes face up to an 85 percent risk of getting breast cancer and up to a 50 percent risk of ovarian cancer. Because of the patents, Myriad has a monopoly on performing all diagnostic tests related to BRCA 1 and BRCA 2.

In the past three decades, the federal government has granted nearly 3,000 similar patents on genetic material. Without such protection, Myriad argues, companies would be less willing to spend the money required for making genetic discoveries.

"Countless companies and investors have risked billions of dollars to research and develop advances under this promise of stable patent protection," according to Gregory Castanias, a Washington, D.C, lawyer who argued the case for Myriad.

The idea of patenting DNA material has provoked a strong debate among scientists, and many have lined up on opposite sides of the case.

"Human genes should not be patented," says James Watson, the Nobel Prize winner and co-discoverer of the double helix structure of DNA.

"Life's instructions ought not be controlled by legal monopolies created at the whim of Congress or the courts," he says.

But a group of researchers at the University of Maryland is among those arguing just the opposite. "The costs are outweighed by the benefits stemming from the fruits of increased inventive activity," they say in their friend-of-court brief.

In the 220 years since Thomas Jefferson wrote the cornerstone of U.S. patent law, the courts have agreed on a general principle: patents protect inventions, not products of nature. A central issue in this case is whether Myriad has obtained a patent on something already in the body or has created something new.

The ACLU, representing a group of scientists, doctors, and cancer patients, claims that Myriad has merely removed from the body something that was already there -- the DNA sequence making up the BRAC 1 and BRAC 2 genes. Because it is a creation of nature, the ACLU says, it cannot be protected by a patent, even though Myriad claims that removing it is what makes it useful.

"Gold does not become patentable once taken out of a stream because it can be used in jewelry. Kidneys do not become patentable once taken out of a body because they can be transplanted," says the ACLU's Christopher Hansen.

Myriad's exclusive patent, says the ACLU, creates a monopoly that denies women the ability to seek a second opinion, based on another test of the genetic material, and dissuades other laboratories from pursuing research on the patented genes.

The ACLU also contends that because the test costs roughly $3,000, many women cannot afford it or lack the necessary insurance coverage. If the gene was not under patent protection, the ACLU says, competition would make the test cheaper.

But Myriad argues that removing the gene sequence from the body requires breaking chemical bonds that lock it into place, thereby creating a new chemical entity.

The resulting genetic materials, the company says, "were never available to the world until Myriad's scientists applied their inventive faculties to a previously undistinguished mass of genetic matter."

Myriad cites a line of cases finding patent eligibility for naturally occurring substances that were isolated and purified, including aspirin, vitamin B12, and adrenaline derived from cows.

As for availability, the company says the cost of the test is covered by private insurance, Medicare, and Medicaid. It also says many other labs provide second opinions regarding the company's test results and that thousands of researchers have done studies on the gene sequence involved, unimpeded by the patent.

The Obama administration has urged the court to be deeply skeptical of Myriad's broad claim of what can be patented. The Justice Department's brief in the case says the public interest has consistently been given precedence by the Supreme Court "in avoiding undue restrictions imposed by patents that effectively preempt natural laws and substances."   

NBC's Tom Curry contributed to this report.

This story was originally published on Mon Apr 15, 2013 4:17 AM EDT

Two weeks after the U.S. Supreme Court heard oral arguments in two highly publicized gay-marriage cases, a majority of Americans continue to say they support same-sex marriage, according to a new NBC News/Wall Street Journal poll. 

Fifty-three percent of respondents favor allowing gay and lesbian couples to marry, which is up 2 points since the NBC/WSJ survey last asked this question in December, though that increase is within the poll’s margin of error.

Forty-two percent oppose gay marriage – also up 2 points since late last year.

By party, 73 percent of Democrats and 54 percent of independents back gay marriage, while 66 percent of Republicans oppose it.

Strikingly, nearly 8-in-10 respondents (79 percent) say they know or work with someone who is gay or lesbian, which is an increase of 14 points since December and 17 points since 2004.

However, only 15 percent say that knowing or working with someone gay makes them more likely to back same-sex marriage; 4 percent say it makes them less likely to support it, and more than half say it doesn’t make a difference.

Win Mcnamee / Getty Images file photo

Equal rights supporters demonstrate in front of the U.S. Supreme Court on March 26, 2013 in Washington, DC. The Supreme Court is hearing arguments March 26, in California's proposition 8, the controversial ballot initiative that defines marriage only between a man and a woman.

These numbers come after numerous Democratic politicians, plus a handful of Republicans, have recently announced their support for gay marriage. They also come as the Supreme Court is expected to decide two different cases this summer – one on the Defense of Marriage Act, a federal law which prohibits the government from recognizing gay marriages performed in states where they are legal, and the other on California’s Proposition 8, which bans gay marriage in that state.

The poll also finds that 63 percent of respondents believe the federal government should recognize same-sex marriages in states where they are legal, and 56 percent think that the question of allowing gay marriage should be left to a federal standard rather than to the states.

In reversal, majority thinks abortion should be illegal
At the same time that general support for gay marriage has increased – albeit within the margin of error – so has opposition to abortion.

According to the survey, a combined 52 percent say that abortion should be illegal either with exceptions or without them, versus a combined 45 percent who say it should be legal either “always” or “most of the time.”

This is a reversal from the NBC/WSJ poll in January, when a majority – for the first time – said abortion should be legal in some form or fashion.

Measuring the values debate
The poll also gauges public sentiment on other questions involving social and moral issues.

Asked to choose what should be a more important goal for society – either promoting greater respect for traditional values or encouraging greater tolerance – 50 percent picked traditional values, and 44 selected greater tolerance.

That’s a significant change from when this question was last asked in 1999, when 60 percent chose traditional values and 29 percent sided with tolerance.

Notably, this movement toward tolerance comes from Democrats and self-described independents – but not from Republicans. (In 1999, 76 percent of Republicans said promoting traditional values was a more important goal vs. 77 percent say that now.)

In another change, half of respondents (50 percent) say that society’s most serious problems stem primarily from economic and financial pressures.

View full poll results here

But in past NBC/WSJ polls – in 1994 and 1996 – majorities said those problems came mainly from a decline in moral values.

And Americans give the Democratic and Republican parties either mixed or poor marks when it comes to social and cultural issues.

By 47 percent to 22 percent, respondents say they disagree with the GOP’s approach to social and cultural issues, and they disagree with Democrats by a 38-percent-to-37 percent margin.

On the parties’ approach to looking out for the middle class, the numbers are even worse – they disagree with Republicans by 51 percent to 24 percent, and with Democrats by 42 percent to 33 percent.

The NBC/WSJ poll was conducted of 1,000 adults (including 300 cell phone-only respondents) from April 5-8, and it has an overall margin of error of plus-minus 3.1 percentage points.

Underneath all the arcane legal fencing in this week’s Supreme Court oral arguments on marriage lies a basic question: Why should the justices take on the job of redefining marriage laws for the nation?

Is it the best venue for making decisions that could fundamentally change social institutions such as marriage? Is it the courts, in the person of unelected life-tenured justices? Or is it the democratic process in the states and in Congress?

At least some elected officials, including President Barack Obama and many Democratic members of Congress are saying to the high court: “You decide this.”

Even some Democratic members of Congress, such as Sen. Patrick Leahy of Vermont, who voted for the 1996 Defense of Marriage Act (DOMA) defining marriage as “a legal union between one man and one woman as husband and wife,” told the high court in their amicus brief that they’d made a big mistake in 1996 -- and now they want the justices to fix it.

But at least some of the justices are pushing back and saying to the politicians: “Why don’t you decide this?”

Justice Samuel Alito said to Solicitor General Donald Verrilli on Tuesday as Verrilli was urging the court to strike down California's traditional marriage definition: “You want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cellphones or the Internet?”

Alito said that he and his fellow justices “do not have the ability to see the future,” implying that they shouldn’t be the lawmakers for American society.

The court does have experience in overriding decisions made by the people and their elected representatives and spurring fundamental social change – for example, the Brown v. Board of Education decision that ordered an end to racial segregation in public schools in 1954 and the 1973 Roe v. Wade ruling that legalized most abortions nationwide.

Whether the court wants the job of social change-maker on marriage remains to be seen.

It may hinge on Justice Anthony Kennedy’s view of Section 3 of DOMA. If Kennedy and his colleagues strike down Section 3, then, as Verrilli said, it is “difficult” to see how laws in the 38 states that define marriage almost exactly as Section 3 does would survive court challenges.

Both Charles Cooper, the lawyer defending California’s traditional marriage law before the court on Tuesday, and Paul Clement on Wednesday defending section 3 of DOMA, pleaded with the justices to let the democratic process work.

“Persuasion,” Clement said in his closing argument. “That's what the democratic process requires. You have to persuade somebody you're right… That's going on across the country. Colorado, the state that brought you Amendment 2 (which essentially banned gay rights in the state in 1992), has just recognized civil unions. Maine, that was pointed to in the record in this case as being evidence of the persistence of discrimination because they voted down a statewide (same-sex) referendum, the next election cycle it came out the other way.”

Clement implied that the political momentum is all in the direction of gay and lesbian rights.

But he omitted mention of North Carolina, which last May became the thirtieth state in the union to amend its constitution to prohibit same-sex marriages. Three out of five North Carolina voters voted for the amendment.

Chief Justice Roberts also seemed to making a case for the court staying out of the fray, implying that gays and lesbians are powerful enough to get politicians’ attention.

In an allusion to recent same-sex marriage endorsements by politicians such as Sen. Kay Hagan, D-N.C., and Sen. Rob Portman, R-Ohio, Roberts told lawyer Roberta Kaplan -- representing Edith Windsor, who is seeking to have DOMA overturned -- that “political figures are falling over themselves to endorse your side of the case.”

He told Kaplan that “the political force and effectiveness of people representing, supporting your side of the case” had led to laws being changed in nine states to allow same-sex couples to marry.

He asked “You don't doubt that the lobby supporting the enactment of same sex-marriage laws in different states is politically powerful, do you?”

Chip Somodevilla / Getty Images

George Washington University students and hundreds of others rally outside the Supreme Court during oral arguments in a case challenging the Defense of Marriage Act (DOMA) March 27, 2013 in Washington, DC.

Kaplan disagreed. Her argument and the Obama administration’s rests partly on a contention that gays and lesbians are a politically powerless minority.

In his brief, Verrilli wrote that “the final consideration is whether gays and lesbian people are ‘a minority or politically powerless.’ They are both.” If gays are powerless and are what the courts call “a suspect class,” then it is easier to strike down laws that affect them under Supreme Court precedents.

Evidence that gays and lesbians aren’t powerless is that politicians such as Hagan, who is up for re-election next year in a state that just banned same-sex marriages, are now not shy about joining the same-sex marriage cause.

But to say it’s no longer too politically risky for Hagan in North Carolina to endorse the right of same-sex couples to marry is not the same as saying there are now the votes in North Carolina to rescind the marriage law which voters enacted just last year.

Putting national polls aside for the moment, it may be useful to look at the pattern of voting in states where real, flesh-and-blood voters have recently voted on marriage.

Maryland voters last November approved a referendum that allows gay and lesbian couples to marry. The vote was 52.4 percent to 47.6 percent – this is in a state that Obama carried with 62 percent.

The pattern reflected the long-standing urban/rural split in politics; urban and suburban counties such as Montgomery County, in the suburbs of Washington, D.C., approved the measure. Two-thirds of Montgomery County voters voted for it.

But in rural counties such as Harford County, the measure was defeated. It was also narrowly defeated in predominantly African-American Prince George’s County in the Washington suburbs. 

The pattern in the state of Washington, where voters last November approved a measure legalizing same-sex marriage, was the same. In suburban Snohomish County, 53 percent of voters voted for legal recognition of same-sex marriages; just across the mountains in rural Chelan County, 57 percent of voters rejected same-sex marriages.

Many of the 38 states that have traditional marriage laws have conservative electorates that more closely resemble rural counties' electorates than urban ones. It may be, as Clement argued, that momentum will eventually move people in those 38 states to OK same-sex marriages, or it may be that Kennedy and his colleagues won’t wait, and will decide the question for them.

Related:

Supreme Court likely to advance gay marriage but stop short of broad ruling

Shifts on same-sex marriage come from surprising groups

Obama on rights of gay couples: 'It is time for the justices to examine this issue'

This story was originally published on Fri Mar 29, 2013 4:54 AM EDT

After two days of highly anticipated courtroom arguments about same-sex marriage, a sweeping ruling on gay rights seems unlikely from the U.S. Supreme Court. But when decisions in both cases come in late June, the result may nonetheless be an important one for advocates of same-sex marriage.

Though it's risky to predict how the court will rule based solely on comments by the justices during the oral arguments, one outcome seemed probable -- a decision striking down the Defense of Marriage Act.

"A decision saying that DOMA is unconstitutional because it discriminates against people based on their sexual orientation, and requiring the federal government to give full recognition to the existing marriages of same-sex couples, would be a huge victory," said Paul Smith of the Washington, D.C., law firm of Jenner & Block.

He was in the courtroom when the justices took up the Proposition 8 case on March 26. Ten years earlier to the day, Smith stood before the justices to argue the case of Lawrence v. Texas, which invalidated state laws criminalizing homosexual conduct. 

In the challenge to California's Prop 8 -- the state constitutional amendment enacted by voters in 2008 that limits marriage to one-man-one-woman couples -- the justices seemed to be searching for a way to avoid a decision. One possible outcome: declaring the case procedurally flawed and sending it back to California, where a lower court decision found Prop 8 unconstitutional. That would allow same-sex marriage to resume there without setting a precedent for other states. 

During Wednesday's argument on DOMA, by contrast, at least four of the justices suggested that the law improperly discriminates against gay couples by blocking the federal government from recognizing same-sex marriages in the states that permit them.  

Elena Kagan read from a House report that said Congress passed DOMA to express its "moral disapproval of homosexuality." Ruth Bader Ginsburg said the 1,100 federal benefits denied to same-sex couples water down their relationships to "skim-milk marriages." 

Sonia Sotomayor asked if members of Congress could create any "class of people they don't like" and deny them benefits. Stephen Breyer asked what justification would permit treating gay marriages differently. 

The fifth vote to strike down DOMA seemed likely to come from Anthony Kennedy, whose comments throughout the argument reflected a concern that Congress had no authority to define marriage, a power reserved to the states. 

Former solicitor general Paul Clement, representing the House Republicans who came forward to defend DOMA, said the law was proper because it dealt only with the government's own definition of marriage in federal laws. For that reason, he said, the question of federal power was "not a DOMA problem." 

Justice Kennedy disagreed. "I think it is a DOMA problem. The question is whether or not the federal government, under our federalism scheme, has the authority to regulate marriage," he said. 

Kennedy said DOMA was "not consistent with the historic commitment of marriage, and of questions of the rights of children, to the states." 

Even if Justice Kennedy's focus on the limits of federal power constrains the court's ruling in the DOMA case, avoiding a full-throated declaration that discrimination based on sexual orientation is unconstitutional, advocates of gay rights say it would still send a powerful message. 

"I think it's enormous," said Mary Bonauto of GLAD, a pioneer in gay rights litigation, of the possibility that DOMA would be struck down. 

"This is a law that has the effect of discriminating only against married same-sex couples. And anytime you eliminate a double standard based on sexual orientation, it matters," she said. 

And Paul Smith of Jenner & Block says such a decision could lay the groundwork for future legal challenges to state laws that forbid same-sex couples to marry. 

"While it's not the same thing as requiring states to let people get married, it will push the momentum forward," he said, and could have an effect on lawsuits now pending that challenge bans on same-sex marriage in Hawaii, Illinois, Nevada, New Jersey, New Mexico and Oklahoma.

Related:

Shifts on same-sex marriage come from surprising groups

Justices signal they might strike down federal marriage law

Obama on rights of gay couples: 'It is time for the justices to examine this issue'

This story was originally published on Fri Mar 29, 2013 4:08 AM EDT

Hearing a challenge to the Defense of Marriage Act, which allows federal benefits to go only to heterosexual married couples, the Supreme Court appeared skeptical of the statute and indicated that it might strike down a section of the 1996 law.

At issue in Wednesday’s oral argument was the Defense of Marriage Act, known as DOMA, passed by overwhelming margins in both houses of Congress and signed by President Bill Clinton.

Listen: Audio of the oral arguments

A section of the law, in effect, bars federal agencies from recognizing same-sex marriages, even in the states where they are legal.

After the oral argument, NBC News Justice Correspondent Pete Williams reported that there seemed to be the five votes on the court that would be needed to invalidate the law.

Justice Anthony Kennedy – viewed by some court observers as the swing vote in the case – indicated that he had problems with law, telling attorney Paul Clement, who was representing House members supporting DOMA, that since federal regulations which affect married couples are “intertwined with the citizens' day-to-day life, you are at real risk of running in conflict with what has always been thought to be the essence of the state police power, which is to regulate marriage, divorce, custody.”

Kennedy also complained that the statute applies not only to the majority of states that don’t allow same-sex marriages but also to the nine states where voters have chosen to make them legal.

The issue before the high court Wednesday was the application of the federal estate tax to a lesbian couple who had been married in Canada and lived in New York.

As executor of Thea Spyer’s estate, Edith Windsor paid more than $360,000 in federal estate taxes. Windsor seeks a refund on the ground that she is Spyer’s surviving spouse. Under federal law, property that passes to a surviving spouse is generally free from estate taxes.

The liberal justices attacked DOMA Wednesday on the grounds that it diminished marriages between same-sex couples in the states that have chosen to legalize them.

Justice Ruth Ginsburg told Clement that for the federal government to say “no joint (tax) return, no marital deduction, no Social Security benefits; your spouse is very sick but you can't get leave ... one might well ask, what kind of marriage is this?”

She said federal regulations which apply to married couples are “pervasive” and the upholding DOMA would mean in effect there would be “two kinds of marriage; the full marriage, and then this sort of skim-milk marriage.”

Justice Elena Kagan also voiced criticism of DOMA, telling Clement that Congress had targeted gay people, “a group that is not everybody's favorite group in the world.”

She asked, “Do we really think that Congress was doing this for uniformity reasons, or do we think that Congress's judgment was infected by dislike, by fear, by animus, and so forth?”

Related: Supreme Court hints that it won't issue sweeping ruling on same-sex marriage

But Justice Sonia Sotomayor raised the question of whether if the court finds section 3 of DOMA unconstitutional, must the laws in most states that limit marriage to opposite-sex couples also be found unconstitutional?

Solicitor General Donald Verrilli replied, “We think it's an open question with respect to state recognition of marriage,” but that “it would be difficult” for states to limit marriage only to opposite-sex couples.

Two years ago, the Justice Department stopped defending DOMA in court after Attorney General Eric Holder notified Congress that he and President Barack Obama had concluded that "classifications based on sexual orientation" were inconsistent with the Constitution's guarantee of equal protection under law.

This drew fire from some of the conservative justices in Wednesday’s oral argument.

Deputy Solicitor General Sri Srinivasan told the justices that Obama “made an accountable legal determination that this act of Congress is unconstitutional,” prompting Kennedy to ask “then why does he enforce the statute?”

Srinivasan said enforcement is not “an all-or-nothing proposition.” That answer didn’t satisfy Chief Justice John Roberts who said, “What is the test for when you think your obligation to take care that the laws be faithfully executed means you'll follow your view about whether it's constitutional or not or you won't follow your view?”

“I'd hesitate to give you a black-and-white algorithm,” Srinivasan replied.

Roberts criticized the Obama administration’s contention that gays and lesbians are a politically powerless group and that therefore they deserve special protection from the court – by applying “heightened scrutiny” to DOMA.

Roberts told Roberta Kaplan, the lawyer representing Windsor, that  the changes in marriage laws in nine states and enactment of domestic partnerships in other states "has a lot to do with the political force and effectiveness of people representing, supporting your side of the case."

When Kaplan disagreed, Roberts asked, “You don't doubt that the lobby supporting the enactment of same sex-marriage laws in different states is politically powerful, do you?”

He also noted that “political figures are falling over themselves to endorse your side of the case.”

Court observers caution that one should not read too much into the questions the justices ask during oral argument since they don’t necessarily reflect how any particular justice would ultimately vote in the case.

Williams said that before the justices even reach the question of the legal merits, they must first decide whether the Obama administration and the House of Representatives have standing to be involved in the case. It remains unclear how a majority of justices will decide that legal standing question.

The Obama administration – even though it was the nominal defendant in the case – urged the federal appeals court in New York to rule in favor of Windsor. So in essence, the Obama administration won in the appeals court and the high court normally doesn’t allow the victorious side in a case to appeal.

The oral argument came a day after the court signaled that it is unlikely to issue a sweeping ruling declaring that same-sex couples have a constitutional right to marry.

Jewel Samad / AFP - Getty Images

Same-sex marriage supporters demonstrate in front of the Supreme Court on March 27, 2013 in Washington, D.C.

Passed by the House in 1996 by a vote of 342 to 67, the Defense of Marriage Act includes one section that says for purposes of federal law marriage is defined as “only a legal union between one man and one woman as husband and wife.”

Another part of the law says that states which do not permit same-sex marriages can’t be forced to recognize a same-sex marriage from another state.

Clinton signed the bill into law and in the 1996 presidential campaign, and his campaign ran radio ads touting that fact. But Clinton recently wrote in the Washington Post, “I have come to believe that DOMA is contrary to those principles and, in fact, incompatible with our Constitution.”

NBC News Justice Correspondent Pete Williams contributed to this story.

This story was originally published on Wed Mar 27, 2013 9:30 AM EDT

An 83-year-old former IBM programmer is asking the U.S. Supreme Court to strike down a law that cost her more than a quarter of a million dollars and deprived her, and thousands of other gay couples, of federal marriage benefits.

At issue is the Defense of Marriage Act, known as DOMA, passed by overwhelming margins in both houses of Congress in 1996 and signed by President Bill Clinton. It bars federal agencies from recognizing the validity of same-sex marriages in the states where they are legal.

The arguments are being heard just one day after a challenge to California’s Proposition 8, which put an end to same-sex marriage in that state, was brought to the high court. On Tuesday, the Supreme Court hinted that it might be hesitant to issue any kind of sweeping ruling declaring that same-sex couples have a constitutional right to marry. The justices seemed wary of issuing a broad decision that would apply to any state outside of California.

As a result of DOMA, same-sex couples in states where same-sex marriages are legal are accorded state and local marriage benefits, but not more than 1,100 federal ones. These range from spousal health coverage to Social Security and veterans' benefits.

For more than 40 years, Edie Windsor lived with another woman, Thea Spyer, and the two were eventually married in Canada in 2007. But when Spyer died two years later, leaving Windsor the estate, the IRS sent a tax bill for $363,053, because DOMA barred the federal agency from recognizing their marriage. The surviving spouse of a traditional marriage is not required to pay federal estate taxes.

"I couldn't believe that they were making a stranger of this person I lived with and loved for 43-something years," she said.

So she sued the U.S. government, and two lower federal courts found that DOMA amounted to unconstitutional discrimination. As the case wound its way through the legal process, the Justice Department, originally her adversary, became her ally.

Two years ago, Attorney General Eric Holder notified Congress of President Barack Obama's conclusion that "classifications based on sexual orientation" were inconsistent with the Constitution's guarantee of equal protection under law. The Justice Department stopped defending DOMA in court.

House Republicans then hired a former solicitor general in the George W. Bush administration, Paul Clement, to take up DOMA's defense. In his written briefs filed with the Supreme Court, he argues that Congress must be able to decide on a definition of marriage for itself.

"The federal government has the same latitude as the states to adopt its own definition of marriage for federal law purposes and has a unique interest in treating citizens across the nation the same," Clement says.

The House Republicans say Congress sought to tie federal benefits to the traditional understanding of marriage and its origins as a way to address "the tendency of opposite-sex relationships to produce unintended and unplanned offspring." In passing DOMA, they say, Congress sought to "foster relationships in which children are raised by both their biological parents."

But the Justice Department and lawyers for Edie Windsor each urge the court to find that DOMA amounts to unconstitutional discrimination because it lacks a legally sufficient government purpose.

"Denying federal protections to married gay couples will not affect whether straight couples marry or have children who are biologically related to both parents," argues Roberta Kaplan, a New York lawyer representing Edie Windsor.

"No straight couple would call off their wedding if Ms. Windsor receives a tax refund," she says.

The Obama administration urges the court to find that two of the other justifications cited by Congress in passing DOMA -- defending traditional notions of morality and of marriage -- cannot carry the law over the constitutional hurdle.

"Moral opposition to homosexuality, though it may reflect deeply-held personal views, is not a legitimate policy objective that can justify unequal treatment of gay and lesbian people," the Justice Department says.

As for tradition, the government says DOMA does nothing to limit marriage to opposite-sex couples, because the states decide for themselves whether to permit it. And no matter how long established, "tradition cannot by itself justify a discriminatory law under equal protection principles."

A decision striking down DOMA would not require states to allow same-sex marriages: they would remain free to decide for themselves. But the federal government would be required to recognize marriages in the states where they are legal.

Nine states now permit same-sex couples to get married -- Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont and Washington. So does Washington, D.C.

The political landscape has shifted dramatically since the law was enacted 17 years ago.  Former President Clinton said earlier this month that he no longer supports the law he signed in 1996 and urged the Supreme Court to strike it down.

"Many supporters of the bill known as DOMA believed that its passage 'would defuse a movement to enact a constitutional amendment banning gay marriage, which would have ended the debate for a generation or more.' It was under these circumstances that DOMA came to my desk," he wrote in a column published in the Washington Post.

"Even worse than providing an excuse for discrimination, the law itself is discriminatory," he said.

In order to decide the issues at the heart of the case, however, the justices will have to consider whether procedural complications allow them to get there, due to the unusual way in which the case arrived on their doorstep.

The Justice Department, which asked the court to take the case, is in an odd posture, because it now sides with Edie Windsor, who won in the lower federal courts.  A party that prevails cannot normally appeal the decision. 

And while the defense of DOMA had been carried on by the House Republicans, there's a further question about whether they meet the legal rule requiring that a party to a case claim some specific injury.  It may not be enough for them to assert that they want to see DOMA enforced.

To help the court navigate these potential roadblocks, it appointed a Harvard Law School professor, Vicki Jackson, to argue the jurisdictional issues during Wednesday's courtroom session.

A ruling in the case will come sometime before the end of the court's term in late June.

Initial readings of the Supreme Court’s oral argument Tuesday indicated that the justices will likely shy away from a broad ruling on the constitutionality of same-sex marriage.

But, alluding to the less-than-accurate predictions after last year’s oral arguments regarding the Obama health care law, the White House says: Hold yer horses.

“We've seen in recent history [that] there's ample reason to be cautious about predicting outcomes in Supreme Court cases based on any particular piece of the puzzle -- in this case, oral arguments," White House spokesman Jay Carney said Tuesday.

After the widely-panned performance last year of the federal government’s lawyer, Donald B. Verrilli, Jr., some commentators predicted that the court would flatly declare the Obama administration’s hard-fought health care law to be unconstitutional.
The court’s decision in June upheld the health care law. 

NBC's Shawna Thomas contributed to this report. 

This story was originally published on Tue Mar 26, 2013 3:09 PM EDT

DAILY RUNDOWN: NBC's Pete Williams reports on the main argument in Tuesday's Supreme Court case, "Is Proposition 8 constitutional?" 

TODAY: The Supreme Court will hear arguments today as they consider whether or not California's same-sex marriage ban is constitutional. If the court strikes down Proposition 8, same-sex marriage would resume in California. NBC's Pete Williams reports and legal analyst Lisa Bloom discusses the case.

NIGHTLY NEWS: As public opinion on gay marriage continues to shift, the U.S. Supreme Court will consider whether the federal government can refuse to recognize it, and whether the states can ban it in the first place. NBC's Pete Williams reports. 

Joshua Roberts / Reuters

A protester raises a flag outside of the U.S. Supreme Court in Washington, March 26, 2013.

How gay marriage has disappeared as a political issue (at least for now)… The power (and limits) of public opinion… Tim Johnson is expected not to seek re-election in 2014… Bill Clinton endorses HRC backer Wendy Greuel in LA mayoral race… NYT writes about “volatile” and “temperamental” Christine Quinn… And more SENATE MADNESS….

*** How gay marriage has disappeared as a political issue (for now): This time a year ago, when the Supreme Court was beginning oral arguments to decide the fate of President Obama’s health-care law, the political world was engaged in all-out conflict. Democrats and the White House fiercely backed the law on constitutional merits, while Republicans and the Romney campaign vociferously opposed it. But as the Supreme Court begins two days of oral arguments for this year’s two high profile cases -- on the topic of gay marriage -- it’s worth observing how it’s largely disappeared as a true political issue between the parties. While Speaker John Boehner and House Republicans spent millions to defend the Defense of Marriage Act (DOMA), which the court considers tomorrow, you haven’t seen them recently hold a press conference outside the court to support the law and denounce gay marriage (though Boehner did comment on the matter last Thursday). While the 2012 Republican national platform maintained that “the union of one man and one woman must be upheld as the national standard,” the Republican National Committee hasn’t been blasting out press releases. Ditto the Democratic National Committee, whose 2012 platform supported gay marriage. Part of this is due to the change in public opinion (see below). And part of it is that we’re not in the midst of a presidential campaign. Of course, politics can always change, but the relative silence -- at least for now, and compared with health care a year ago -- is deafening.

*** The power (and limits) of public opinion: It’s also notable how quickly public opinion has changed on this subject. Back in 2004 -- when it was used as a wedge issue in that year’s presidential election -- just 30% of Americans favored gay marriage, while 62% opposed it, according to the NBC/WSJ poll. In 2009, those supporting it increased to 41%, and the percentage jumped to 49% in March 2012. And most recently, in Dec. 2012, a majority of respondents (51%) for the first time in the poll said they backed gay marriage. That’s an increase of 21 percentage points in just one year. What’s more, a March 2013 Washington Post/ABC poll found nearly six in 10 (58%) supporting gay marriage. This helps explain why so many national politicians -- President Barack Obama, Hillary Clinton, Rob Portman, Claire McCaskill, and Mark Warner -- now support gay marriage; in fact, Obama’s reversal came less than a year ago. But it’s equally important to note the limits of this change in public opinion. As Georgetown University law professor David Cole writes in the New York Times, “Same-sex marriage is legal in nine states and the District of Columbia, but is the country ready for a decision requiring all 50 states to recognize such unions immediately?” Cole also asks if there would be a backlash (like what occurred after Brown v. Board of Education and Roe v. Wade) among the 40% who oppose gay marriage.

*** Tim Johnson isn’t expected to seek re-election in 2014: At 4:00 pm ET today in South Dakota, Sen. Tim Johnson is holding a press conference to announce his intentions about 2014, when his Senate term expires. And as First Read reported yesterday, Johnson is expected to announce that he WON’T be seeking re-election, according to a top Democratic aide. Democrats are hoping to be able to recruit former Rep. Stephanie Herseth-Sandlin (D-SD). But make no mistake: This is a top GOP pick-up opportunity, especially in a midterm year. Here’s our retirement watch for 2014: The Democrats -- so far -- have to defend six open seats (West Virginia’s Jay Rockefeller, Massachusetts’ John Kerry, Iowa’s Tom Harkin, New Jersey’s Frank Lautenberg, Michigan’s Carl Levin, and South Dakota’s Tim Johnson), versus two for Republicans (Nebraska’s Johanns and Georgia’s Saxby Chambliss).

*** Bill Clinton endorses HRC backer Greuel in LA mayoral race: It’s amazing to think that the Obama-vs.-Hillary Democratic primary was five years ago, but Bill Clinton is still endorsing candidates who backed his wife over Obama. The latest example: L.A. mayoral hopeful Wendy Greuel. “Former President Bill Clinton on Monday endorsed Wendy Greuel for Los Angeles mayor, saying the city controller’s proven track record makes her the right candidate to confront the city’s problems,” the Los Angeles Times says. “Clinton has often endorsed people who have been loyal to his family, either helpful during his time at the White House or supporters of his wife’s unsuccessful 2008 presidential run. Greuel fits both categories -- in addition to being an early and active backer of Hillary Clinton’s presidential campaign, she worked in the Clinton administration at the Department of Housing and Urban Development." Meanwhile, Greuel's run-off opponent is Eric Garcetti, who was a big supporter of Barack Obama's in 2008.

*** “Volatile” and “temperamental”? And speaking of this year’s mayoral races, the New York Times writes this piece on NYC mayoral front-runner Christine Quinn. “As she pursues a high-profile bid for mayor, Ms. Quinn, a Democrat, has proudly promoted her boisterous personality, hoping that voters will embrace her blend of brashness and personal charm. But in private, friends and colleagues say, another Ms. Quinn can emerge: controlling, temperamental and surprisingly volatile, with a habit of hair-trigger eruptions of unchecked, face-to-face wrath. She has threatened, repeatedly, to slice off the private parts of those who cross her.” But here’s our question: Isn’t it unusual in politics -- especially New York City politics!!! -- if a politician didn’t have a temper and didn’t threaten those that cross them?

*** Senate Madness -- results from yesterday’s contests: Not surprisingly, all our No. 1 seeds -- Daniel Webster, Henry Clay, LBJ, and Ted Kennedy -- easily advanced yesterday to the next round. In addition, William Seward defeated John Sherman in the 19^th Century bracket; Sam Ervin topped Harry Byrd in the Mixed Era bracket; Robert Wagner bested Hugo Black in the 20^th Century bracket; and Robert Byrd triumphed over Tom Daschle in the Modern Era. Our second-round contests start next week.

*** Senate Madness -- today’s first-round match ups: Meanwhile, these are the contests that are taking place today (see here and here). In the 19^th Century era, #2 seed John C. Calhoun faces off against #15 seed Marcus Hanna, and #7 Thomas Hart Benton competes against #10 James G. Blaine… In the Mixed Era region, #2 Henry Cabot Lodge battles #15 Phil Hart, while #7 Arthur Vandenberg takes on #10 Gerald Nye… In the 20^th Century, it’s #2 Everett Dirksen vs. #15 Margaret Chase Smith, and #7 Robert Taft vs. #10 William Fulbright… And in the Modern Era region, it’s #2 Daniel Patrick Moynihan vs. #15 George Mitchell, and #7 Ed Muskie vs. #10 Bob Dole. We’ll have more first-round match ups tomorrow.

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In a historic oral argument on a challenge to state laws that limit marriage to heterosexual couples, the Supreme Court indicated Tuesday that it might not strike down such laws.

The justice whom many observers view as the swing vote in the case, Justice Anthony Kennedy, voiced worry at one point during the argument that proponents of same-sex marriages were asking the court to issue a decision that would “go into uncharted waters.”

After the oral argument, Pete Williams of NBC News reported that it seemed “quite obvious that the U.S. Supreme Court is not prepared to issue any kind of sweeping ruling” declaring that same-sex couples have a constitutional right to marry.

Williams said there seemed to be “very little eagerness” from any of the justices to “embrace that broad a ruling.”

LISTEN: Audio of the oral arguments

At issue Tuesday was California’s Proposition 8, the state constitutional amendment enacted by voters in 2008 that limits marriage to one man-one woman couples. Those seeking to have the court strike down Proposition 8 argue that the Equal Protection Clause of the Fourteenth Amendment includes a right for same-sex couples to marry.

Williams said that both the liberal and the conservative justices seemed wary of issuing a decision that would apply to any state outside of California.

Art Lien

A courtroom sketch of the oral arguments.

It seemed possible the court would not issue any ruling on marriage at all – deciding instead that it had made a mistake in even agreeing to hear the case since the plaintiffs, supporters of Proposition 8, might lack the legal standing to bring the suit.

“I just wonder if the case was properly granted,” Kennedy said at one point to attorney Theodore Olson who was representing those challenging the California law.

And a few justices seemed to imply that it might be prudent for the court to step back and allow the states to assess what the effects of same-sex marriages might be.

Justice Sonia Sotomayor said at one point, “If the issue is letting the states experiment and letting the society have more time to figure out its direction, why is taking a case now the answer?”

Along similar lines, Justice Samuel Alito said “there isn't a lot of data” about the social effects of the institution of same-sex marriage.

“And it may turn out to be a good thing; it may turn out not to be a good thing, as the supporters of Proposition 8 apparently believe,” Alito said to Solicitor General Donald Verrilli, who was arguing for the Obama administration, as a friend of the court, in opposition to Proposition 8.

“But you want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet?”

Alito added, “On a question like that, of such fundamental importance, why should it not be left for the people, either acting through initiatives and referendums or through their elected public officials?”

Kennedy, while expressing those same concerns, also noted, “On the other hand, there is an immediate legal injury or legal – what could be a legal injury, and that's the voice of these children. There are some 40,000 children in California ... that live with same-sex parents, and they want their parents to have full recognition and full status.”

It is possible that a majority of the justices could support a ruling that applies only to California – or one that applies only to California and several other states which allow domestic partnerships that are almost identical to marriage in all but name.

During the argument, Justice Antonin Scalia was the one justice who voiced the most skepticism about the argument that limiting marriage to heterosexual couples is a violation of the Fourteenth Amendment’s Equal Protection Clause.

He said to Olson, “I'm curious, when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Was it always unconstitutional?”

Olson replied that “when we as a culture determined that sexual orientation is a characteristic of individuals that they cannot control” then at that point limiting marriage became unconstitutional.

Scalia then asked, “When did that happen?”

Olson responded, “There's no specific date in time. This is an evolutionary cycle.”

At another point Chief Justice John Roberts asked Olson whether those seeking to strike down Proposition 8 were interested only in the label “marriage,” since the state of California already grants same-sex couples almost all the legal protections and rights provided to heterosexual married couples.

“So it's just about the label in this case,” Roberts said.

“The label "marriage" means something,” Olson answered.

But Roberts then observed, “If you tell a child that somebody has to be their friend, I suppose you can force the child to say, ‘this is my friend,’ but it changes the definition of what it means to be a friend.”

Court observers caution that one should not read too much into the questions the justices ask and the comments they make during oral argument since they don’t necessarily reflect how any particular justice would ultimately vote in the case.

Charles Cooper, who served in the Reagan administration as assistant attorney general in charge of the Office of Legal Counsel, argued the case Tuesday for supporters of Proposition 8.

Although the justices are deciding a constitutional question, the argument is taking place as polls indicate that public opinion is shifting toward acceptance of same-sex marriage.

In recent years, nine states, either through court rulings, legislation, or ballot measures, have redefined marriage to include same-sex couples. But most states have laws or constitutional provisions that define marriage as the union of one man and one woman.

More elected officials, such as Sen. Claire McCaskill, D-Mo., Sen. Rob Portman, R-Ohio, and Sen. Jon Tester, D- Mont., are personally endorsing same-sex marriage, but it remains to be seen whether the justices will be influenced by public opinion.

In a statement Tuesday, Tester said, "no one should be able to tell a Montanan or any American who they can love and who they can marry."

Three weeks ago Tester signed an amicus brief filed by Democratic members of Congress urging the justices to overturn part of the 1996 Defense of Marriage Act.

On Wednesday the high court will hear oral arguments in that challenge to one section of the Defense of Marriage Act, which for purposes of federal regulations and benefits, defines marriage as “a legal union between one man and one woman as husband and wife.”

This story was originally published on Tue Mar 26, 2013 4:01 AM EDT

Historic gay rights cases arrive at the Supreme Court this week as even opponents of same-sex marriage acknowledge that public opinion has shifted against them.

Vote now: March Madness - Senatorial edition

As the court prepares for oral arguments in two cases – one challenging the constitutionality of California’s ban on same-sex marriage, the other challenging the 1990s-era Defense of Marriage Act – the trickle of support among political leaders for marriage rights for gays and lesbians has continued to grow.

Speaking Sunday on NBC’s “Meet the Press,” Ralph Reed, the head of the socially conservative Faith and Freedom Coalition, admitted that the political divide over same-sex marriage was “basically a jump ball.”

“It's clearly moved,” Reed said of popular opinion, though he disputed any notion that Americans have come to universally back same-sex marriage.

But the shifting politics appear to be accelerating even more quickly. When former Secretary of State Hillary Clinton formally announced her support for same-sex marriage a few weeks ago, the announcement was met in some quarters by surprise – usually that Clinton hadn’t made such a pronouncement already.

On the cusp of this week’s oral arguments – and, potentially, a Supreme Court decision later this June dramatically expanding gay rights – more political notables have announced their support for marriage rights. 

Sen. Mark Warner, a Democrat representing swing state Virginia, wrote on his Facebook page on Monday that he now backs gay marriage "because it is the fair and right thing to do." 

 "Like many Virginians and Americans, my views on gay marriage have evolved, and this is the inevitable extension of my efforts to promote equality and opportunity for everyone," he wrote. 

Warner's comments came the day after Sen. Claire McCaskill, a Democrat from GOP-leaning Missouri, also announced her support for same-sex marriage. 

“My views on this subject have changed over time, but as many of my gay and lesbian friends, colleagues and staff embrace long-term committed relationships, I find myself unable to look them in the eye without honestly confronting this uncomfortable inequality,” McCaskill wrote Sunday evening on her tumblr page.

Missouri is one of 38 states that prohibits same-sex marriage, either through legislation, ballot initiative or state constitutional amendment. Those state-level prohibitions could still stand in the aftermath of a Supreme Court ruling, depending on how expansive the court’s eventual decision might be.

It’s also banned in Ohio, where Republican Sen. Rob Portman’s endorsement of same-sex marriage rights (prompted by his own son having come out as gay) earlier this month served as an even bigger watershed moment. Nine whole years after President George W. Bush proposed a constitutional amendment to ban gay marriage, Portman – a member of the Bush administration, and a serious contender for the GOP’s vice presidential nomination in 2012 – had offered high-profile support to same-sex marriage.

Moreover, Bush’s own former political adviser, Karl Rove, said this weekend on ABC that he could envision a Republican candidate (though not necessarily the nominee) for president in 2016 supporting same-sex marriage. Already, Jon Huntsman, a 2012 contender for the GOP nod who could seek the nomination again in 2016, has announced his support for marriage rights.

And while the shift might hearten gays and lesbians who hope to marry their partners, the tide toward supporting same-sex marriage is certainly driven in part by political considerations. Fifty-one percent of Americans nationwide said in December’s NBC News-Wall Street Journal poll that they now support the right of gay and lesbian couples to marry. Just 30 percent of Americans backed marriage rights in spring of 2004, by comparison.

Republicans’ post-election autopsy last week noted, for instance, that “certain social issues are turning off young voters.”

“Already, there is a generational difference within the conservative movement about issues involving the treatment and the rights of gays — and for many younger voters, these issues are a gateway into whether the Party is a place they want to be,” the report read.

Political leaders looking to complete their political “evolution” on gay marriage (to borrow a phrase from how President Barack Obama described his own shift toward backing marriage rights) could receive political cover this summer. A Supreme Court ruling that effectively legalizes same-sex marriage across the country – a possible outcome, though not necessarily the likely one – could hasten the number of lawmakers who feel comfortable to publicly back same-sex marriage, or at the very least, abandon it as a wedge issue.

NBC's Carrie Dann contributed to this report.