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US judges question ban on same-sex marriage

The Defence of Marriage Act defines marriage for federal purposes as only between one man and one woman.

Washington: As the US Supreme Court concluded its historic hearing on the legality of same-sex marriage, a majority of its nine judges raised questions about a federal law denying some benefits to gay couples.

While nine of America`s 50 states allow same-sex marriage and nine others permit civil partnerships, the Defence of Marriage Act (DOMA) defines marriage for federal purposes as only between one man and one woman.

The top court is expected to give its verdict by mid-June on DOMA signed into law in 1996 by then President Bill Clinton as also California`s Proposition 8 that bans same-sex marriage.

The court heard arguments on Tuesday and Wednesday on what has since the November presidential election as a major social issue with a bearing on electoral politics-the right of gay and lesbian couples to wed and receive the full benefits of law provided to heterosexual couples.

Under DOMA, Social Security, pension and bankruptcy benefits, along with family medical leave protections and other federal provisions, do not apply to gay and lesbian couples legally married in states that recognise such unions.

Going by the comments from the bench split equally between liberals and conservatives, the court appeared divided about whether DOMA is discriminatory and steps on state marriage laws for gays and lesbians.

"What gives the federal government the right to define marriage?" asked Justice Sonia Sotomayor.

The potential swing vote, Justice Anthony Kennedy, also questioned the reach of DOMA, saying it presents a "real risk of running into traditional state police power to regulate marriage".

On the other side, Chief Justice John Roberts repeatedly asked whether it would step on state power to do the opposite of DOMA-pass a law providing full federal benefits to any legally married same-sex couple.

Roberts and Justice Antonin Scalia also suggested DOMA could still remain in place as a valid extension of congressional authority, as 41 states do not allow same-sex marriage.

The DOMA challenge was brought by Edie Windsor, an 83-year-old woman from New York who married Thea Clara Spyer in 2007. After Spyer`s death in 2009, Windsor was denied an exemption of federal estate taxes.

President Barack Obama who last May came out in support of same-sex marriage had earlier in February 2011 told the US Congress that the Department of Justice would no longer defend DOMA in federal court.

However, the Republican controlled House of Representatives is defending DOMA in court at a cost of USD 3 million.

A recent ABC News/Washington Post poll, taken March 7-10, showed 58 percent of respondents in support of gay marriage, while 36 percent opposed it.

That`s nearly the opposite of public opinion on gay marriage in 2003, when ABC/Post polling showed 37 percent support and 55 percent opposition.