Alito questions favorable tax provisions and DOMA

>>> will come back. breaking news. we are getting even more audio in from today's supreme court hearing on same-sex marriage and the constitutionality of california's prop 8 -- actually, on doma. i apologize. here is justice roberts for us.

>> i would have thought your answer would be that the executive's obligation to execute the law includes the obligation to execute the law consistent with the constitution. and if he has made a determination that executing the law by enforcing the terms, is unconstitutional, i don't see why he doesn't have the courage of his convictions and execute not only the statute but do it consistent with his view of the constitution. rather than saying, oh, we'll wait until the supreme court tells us we have no choice.

>> again, let me bring back with us, kenji, professor of constitution yalg law at nyu law school . thank you for joining us professor. i want it play another excerpt since we are getting them in pretty rapidly. the fear toward homosexuals, lit me play it.

>> so they can create a class they don't like here, homosexuals were or a class they consider is suspect in the marriage category, and they can create that clash of side benefits on that basis. when they themselves have no interest in the actual institution of marriage as marriage, the state's control that.

>> give us a little more detail there, with justice sotomayor.

>> the court said that cannot stand. the quote unquote , bear desire isn't enough. so congress may be particularly vulnerable in a way that the states would not, thereby distinguishing as she did repeatedly in this oral argument between what happened today and yesterday in the prop 8 can case.

>> so why congress got involved 17 years ago in the first place.

>> exactly.

>> so this one from justice prior discussing why discriminate against guy marriage. and also justice i leeto on the taxes. let's play both excerpts.

>> what is special onity own distinguishes and thus makes rational or whatever basis you will have here within treating the gay marriage differently?

>> suppose we look just at the state tax provision at issue in this case, which provides special favorable treatment to a married couple as opposed to any other individual or economic unit . what was the purpose of that? was the purpose of that really to foster traditional marriage or was congress just looking for a convenient category to capture households that function as a unified economic unit .

>> with justice eilito there. interesting comment from justice ilito. we talked to the man who moved from the united states because his significant other could not apply for a visa or green card , as would be the case for an opposite married couple. opposite sex married couple. so there is a different here. and it is not just about a tax provision.

>> yeah. i think what he is trying to get at is it a favorable tax treatment. edie windsor gets hit with $364,000 federal tax she would not have been hit with had she been married to a man. so can we look that in an isolation and say the reason for the favorable tax statement is not about even protection of traditional marriage . just that we have to draw the line somewhere. so he is trying to get away from the marriage issue. i agree it is unpersuasive. we have bundled so many rights of entitlements and attached them to the status of the --

>> i believe the justices pointed out 111 provisions if you will for couples. 1100 , excuse me, for couples who are married, benefit from having a recognized marriage in this country.

>> exactly. if you go through the united states code there are 1,138 provisions that rely on the term marriage and dispensing benefits or burden.

>> that is interesting. we will see what else we can bring to our audience. the audio is coming in and we will play it for our audience as soon as possible. ken ji, thank you for sticking around and helping connect the dots.

Source: http://feeds.nbcnews.com/c/35198/f/654708/s/2a108bbb/l/0Lvideo0Bmsnbc0Bmsn0N0Cid0C51351740A/story01.htm

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