For the second straight day, gay marriage was the question before the U.S. Supreme Court—this time whether the court should strike down the federal Defense of Marriage Act that denies federal benefits to gay couples who have been legally wed in states that permit same-sex marriage.
Though it’s impossible to tell which way the court will lean, the liberal wing appeared inclined to strike down DOMA’s denial of federal benefits. The denial of federal benefits can represent substantial loss for gay couples. At last count there were 1,138 federal benefits, rights and privileges given heterosexual married couples that gay couples can’t receive, according 2003 study done by the Government Accountability Office.
The Defense of Marriage Act was passed overwhelmingly by Congress and signed into law in 1996 by President Bill Clinton — who now says the law is unconstitutional. The law defined marriage as a union between a man and a woman.
While no states had legalized same-sex marriage in 1996, now nine states and the District of Columbia have done so. An estimated 132,000 gay couples who were legally married in one of those states or in D.C., are now being denied federal spousal benefits.
The suit was filed by Edith Windsor, an 83-year-old lesbian widow from New York who was hit by a $363,000 estate tax bill when her spouse, Thea Spyer, died in 2009. It is a tax bill she would have avoided if her spouse had been a man because heterosexual spouses can transfer wealth tax-free.
After Wednesday’s arguments, Windsor pumped her fist to the delight of a large, cheering crowd outside the court building in Washington.
“I think it went great,” she said. She wore a diamond pin given to her by Spyer. “I didn’t feel any sense of hostility. I felt very respected.”
According to Windsor’s legal team, the federal government has no role in defining marriage, which is traditionally left to states.
“It’s the states that marry people,” said James Esseks, an American Civil Liberties Union lawyer representing Windsor. “The federal government doesn’t do that.”
But the court’s conservatives were eager to defend the federal law — led enthusiastically by Chief Justice John Roberts — a clear sign that any decision likely would come by a 5-4 margin.
As was the case with the arguments on Tuesday when the court was considering whether to uphold California’s same-sex marriage ban, the justices appeared reluctant to use the case to make a broad statement—and they even wondered if the case was properly before them.
Justice Anthony Kennedy, as usual, is clearly the swing vote. Kennedy today questioned whether the federal government lacked the authority to deny benefits to couples legally married in their states.
The question is “whether the federal government has the authority to regulate marriage,” he said. “That authority undermines the states’ role in the federal system.”
Kennedy appeared concerned that the federal law could be a violation of peoples’ equal protection rights and also of states’ rights and federalism.
Among the slew of federal laws that hurt same-sex spouses, the most prevalent are tax laws, which keeps gay and lesbian spouses from getting tax-free health benefits from their employers. That provision that can cost about $1,000 a year on average, says Gary Gates, a demographer who studies gay and lesbian trends at the Williams Institute of UCLA School of Law.
Justice Ruth Bader Ginsburg and Justice Sonia Sotomayor both found the law discriminatory. Ginsburg said some couples can have “full marriage,” but others who are gay are left with “skim-milk marriage.”
Sotomayor said the law creates two classes of married couples.
“You are treating a married couple from New York (who are gay) differently than a couple from Oklahoma,” she said, though both are legally married under state law. The government “can’t create a class they don’t like,” she said, “and decide they get different benefits on that basis.”
The court’s conservatives used the oral arguments to attack President Obama for deciding not to defend the federal law in court, even though it had been approved by Congress. They said that called into question his willingness to defend other laws passed by Congress and challenged in court, several conservative justices said.
“I don’t see why he doesn’t have the courage of his convictions,” said Chief Justice Roberts, who has squared off against Obama in the past. Roberts suggested that if Obama disapproves of the law, he should simply refuse to enforce it rather than ask the court for a decision.
But Deputy Solicitor General Sri Srinivasan said the president’s oath to defend the constitution gives him the authority to refuse to defend a law that clearly violates a constitutional provision. Srinivasan said the administration decided to seek further court review of the law out of “respect” for the courts and Congress — a position that seemed to please the liberal justices.
As usual, Justice Clarence Thomas was silent during the oral arguments on both days, keeping alive his streak of seven years since he last asked a question during oral arguments.
