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  |   March 27, 2013 at 5:03 PM
Court hears DOMA challenge

WASHINGTON, March 27 (UPI) -- The U.S. Supreme Court resumed its examination of same-sex marriage Wednesday, this time considering the constitutionality of the Defense of Marriage Act.

Justice Anthony Kennedy indicated the act, known as DOMA, violated states' rights and four other judges indicated they considered it a gay-rights issue, a tweet by Scotusblog.com said.

"#scotus 80% likely to strike down #doma," the tweet said "J [Justice] Kennedy suggests it violates states' rights; 4 other Justices see as gay rights."

Before getting to the merits of the case, the court spent about an hour discussing whether the matter was properly brought before it, The Washington Post reported. The Obama administration has said that it would not defend the law, and lower courts have ruled DOMA unconstitutional but the administration has said it would enforce the law until the Supreme Court rules.

During Wednesday's oral arguments, Justice Antonin Scalia commented on the contradictory positions, saying it was a "new world" when the attorney general could decide a law is unconstitutional but still enforce it, Post said.

Kennedy, considered a potential swing vote in the case, called it a "questionable practice."

Chief Justice John Roberts criticized the administration's decision, saying he didn't understand why Obama "doesn't have the courage of his convictions" and refuse to apply the statute.

Deputy Solicitor General Sri Srinivasan said Obama was trying to show respect for Congress by enforcing the law until the high court could rule on its constitutionality.

Arguments focused on one section of the 1996 act that states a range of federal benefits and considerations for married couples apply only to heterosexual unions.

Kennedy told the advocate defending the law it did promote "uniformity" in federal law, noting that there were 1,100 references to marriage in the federal code, and that the definition of a married person is "intertwined with daily life." Kennedy questioned whether the federal government may impose its view of marriage, which has "always thought to be" the domain of the state.

Nine states and the District of Columbia permit same-sex couples to marry.

Paul D. Clement, representing Republican House leaders who are defending the law, said Congress wasn't discriminating but keeping hands off experiments by the states on same-sex marriage.

The law does not punish states for allowing such unions, but allows the federal government to decide how it chooses to allocate its benefits, he said.

Justice Ruth Bader Ginsburg said federal rules that apply to married couples are so enveloping that in states allowing same-sex marriages, married same-sex couples can't get the federal benefits available to heterosexual couples, which creates "a skim milk marriage."

In the underlying case, Edith Schlain Windsor, an 84-year-old New Yorker, married her same-sex partner of 40 years, Thea Spyer, in 2007 in Canada. When Spyer died in 2009 of multiple sclerosis, she left her estate to Windsor.

As executor of Spyer's estate, Windsor paid approximately $363,000 in federal estate taxes, but filed a refund claim under a federal statute that says "property that passes from a decedent to a surviving spouse may generally pass free of federal estate taxes." The Internal Revenue Service denied the claim on the ground that Windsor is not a "spouse" within the meaning of DOMA Section 3 and thus not a "surviving spouse" within the meaning of the statute.

A federal appeals court ruled in her favor.

The justices heard arguments Tuesday on California's Proposition 8, a referendum that stripped same-sex couples of the right to marry. California voters approved Proposition 8, the California Marriage Protection Act, in 2008 with slightly more than 52 percent for, nearly 48 percent against but a federal judge declared Prop 8 unconstitutional and a three-judge appeals court panel in San Francisco agreed.


Court rules in favor of federal prisoner

WASHINGTON, March 27 (UPI) -- The U.S. Supreme Court Wednesday ruled a federal prison inmate may sue the federal government for alleged abuse by correctional officers.

The court, in reversing the U.S. Court of Appeals, said the Federal Tort Claims Act applies to all activities of law enforcement officers within the scope of their employment, not just to their investigative or law enforcement activities.

The case has implications for all federal law enforcement that might be accused fairly or unfairly of prisoner abuse, not just corrections officers.

Kim Millbrook, who is serving 31 years in prison on a variety of charges, alleged federal correctional officers sexually assaulted and verbally threatened him while he was in their custody. Millbrook filed suit in federal District Court under the FTCA, which waives the government's sovereign immunity from tort suits, including those based on certain intentional torts committed by federal law enforcement officers.

The District Court dismissed Millbrook's action, and the Court of Appeals affirmed. The Court of Appeals held that the FTCA only waives the United States' sovereign immunity for certain intentional torts by law enforcement officers when the tortious conduct occurs in the course of executing a search, seizing evidence, or making an arrest.

The Supreme Court ruled the FTCA's waiver is not so limited.

"We hold that the waiver effected by the law enforcement proviso extends to acts or omissions of law enforcement officers that arise within the scope of their employment, regardless of whether the officers are engaged in investigative or law enforcement activity, or are executing a search, seizing evidence, or making an arrest," the unanimous opinion, written by Justice Clarence Thomas, said. "Accordingly, we reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion."

Milbrook alleged he was forced to perform oral sex on a federal correctional officer in 2010 at the U.S. Penitentiary in Lewisburg, Pa., while another officer held him in a choke hold and a third officer stood watch nearby. Millbrook claimed that the officers threatened to kill him if he did not comply with their demands.


Loughner shooting documents released

TUCSON, March 27 (UPI) -- Officials have released records from a rampage in which Jared Loughner killed six people and wounded 14 others, including former U.S. Rep. Gabrielle Giffords.

More than 2,700 pages of records, released by the Pima County (Ariz.) Sheriff's Office, are expected to shed new light on the 2011 incident which left U.S. District Judge John Roll and five others dead, The Arizona Republic reported Wednesday.

Loughner pleaded guilty to the shootings in 2012 and has been sentenced to seven life terms plus 140 years in prison.

Giffords, a Democrat, has since retired as a member of Congress from Arizona.

Sheriff's officials, who investigated the shootings with the FBI, withheld the crime reports for two years under a federal court order, with U.S. District Judge Larry Burns deciding the release of the documents could jeopardize the defendant's right to a fair trial.

Burns recently lifted his seal of the information at the request of news media, leading to the release of the documents and closing a two-year legal battle with the media, the newspaper said.


Pope holds first general audience

VATICAN CITY, March 27 (UPI) -- Pope Francis conducted his first general audience Wednesday before thousands who filled St. Peter's Square in the Vatican.

"I am happy to welcome you to this, my first general audience," he said. The pope then offered a catachesis, a teaching summary of doctrine, in a wide-ranging address focused on Holy Week, the days prior to Easter, the Vatican Information Service reported.

"God didn't wait for us to come to him, it was He who came to us. Jesus lived the everyday reality of the most common persons. His mission is to open the doors of God for all," the pope said.

He later addressed various groups in attendance, including university students attending the international UNIV Congress in Rome, the Vatican Information Service said.

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