In this Sept. 10, 2012, file photo, gay marriage supporters gather at a rally outside of City Hall in Portland, Maine, in support of an upcoming ballot question that seeks to legalize same-sex marriage. On one aspect of whether same-sex couples should have the right to marry, both sides agree: The issue defines what kind of nation we are. Half a dozen states and the District of Columbia have made history by legalizing it, but it’s prohibited elsewhere, and 30 states have placed bans in their constitutions.
NEW YORK — A U.S. appeals court Thursday is set to consider the constitutionality of the Defense of Marriage Act, a federal law restricting the recognition of same-sex unions that has been at the heart of the state-by-state fight over legalizing gay marriage.
The federal law been struck down in several places. Now a three-judge panel of the 2nd U.S. Circuit Court of Appeals in New York will hear lawyers argue whether the law should be abandoned or preserved. A ruling is not expected for months.
The law affirms the right of states to refuse to recognize same-sex marriages. It was passed by Congress and signed by President Bill Clinton in 1996 after it appeared in 1993 that Hawaii might legalize them. Since then, many states have banned gay marriage and several have approved it, including Massachusetts and New York.
In written arguments, former U.S. attorneys general Edwin Meese III and John Ashcroft say it is unprecedented that the government would not defend a law that does not involve concerns over the separation of powers among the federal and state governments.
"Historically, the president's constitutional obligation to 'take care that the laws be faithfully executed' has been understood to include the vigorous defense of acts of Congress when they are challenged in court," they said.
The Justice Department says the law was motivated largely by disapproval of gays and lesbians and there was no governmental interest to justify the law's "differential treatment of same-sex couples who are legally married under the laws of their states."