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| 5 Justices Skeptical of Ban on Benefits to Gay Spouses | |
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| WASHINGTON — A majority of the justices on Wednesday questioned the constitutionality of the Defense of Marriage Act of 1996, as the Supreme Court took up the volatile issue of same-sex marriage for a second day. | WASHINGTON — A majority of the justices on Wednesday questioned the constitutionality of the Defense of Marriage Act of 1996, as the Supreme Court took up the volatile issue of same-sex marriage for a second day. |
| Justice Anthony M. Kennedy, widely considered the swing vote on the divided court, joined the four liberals in posing skeptical questions to a lawyer defending the law, which defines marriage as the union of a man and a woman for the purposes of more than 1,000 federal laws and programs. | Justice Anthony M. Kennedy, widely considered the swing vote on the divided court, joined the four liberals in posing skeptical questions to a lawyer defending the law, which defines marriage as the union of a man and a woman for the purposes of more than 1,000 federal laws and programs. |
| “The question is whether or not the federal government under a federalism system has the authority to regulate marriage,” Justice Kennedy said during oral arguments, suggesting that the question should be left to the states. He disagreed with the contention that the federal law simply created a single definition for federal purposes, noting that same-sex couples are not treated the same as other married couples. “It’s not really uniformity,” he said. | “The question is whether or not the federal government under a federalism system has the authority to regulate marriage,” Justice Kennedy said during oral arguments, suggesting that the question should be left to the states. He disagreed with the contention that the federal law simply created a single definition for federal purposes, noting that same-sex couples are not treated the same as other married couples. “It’s not really uniformity,” he said. |
| Justice Kennedy’s point echoed one made by his more liberal colleagues. | Justice Kennedy’s point echoed one made by his more liberal colleagues. |
| Justice Ruth Bader Ginsburg said the federal law effectively created a two-tiered system of marriage. “There are two kinds of marriage,” she said. “Full marriage and the skim-milk marriage.” | Justice Ruth Bader Ginsburg said the federal law effectively created a two-tiered system of marriage. “There are two kinds of marriage,” she said. “Full marriage and the skim-milk marriage.” |
| Paul D. Clement, a former solicitor general who is defending the law on behalf of House Republicans because the Obama administration has concluded it is unconstitutional, argued that the federal government has “a legitimate interest to weigh into the debate” about marriage and define what it means when it uses the term in deciding everything from taxes to Social Security benefits. | Paul D. Clement, a former solicitor general who is defending the law on behalf of House Republicans because the Obama administration has concluded it is unconstitutional, argued that the federal government has “a legitimate interest to weigh into the debate” about marriage and define what it means when it uses the term in deciding everything from taxes to Social Security benefits. |
| Mr. Clement said that those 1,000 laws and programs had originally been passed with the traditional definition of marriage in mind and that Congress was worried in 1996 that if one state extended the definition to include same-sex couples, it would effectively force other states and the federal government to recognize them, too. Lawmakers were concerned, he said, that “this is a redefinition of an age-old institution.” | Mr. Clement said that those 1,000 laws and programs had originally been passed with the traditional definition of marriage in mind and that Congress was worried in 1996 that if one state extended the definition to include same-sex couples, it would effectively force other states and the federal government to recognize them, too. Lawmakers were concerned, he said, that “this is a redefinition of an age-old institution.” |
| The arguments came a day after another gay-marriage case was debated before the court, a challenge to California’s Proposition 8, which bans such unions. By comparison, Wednesday’s case is comparatively modest, raising the question of whether married same-sex couples are entitled to federal benefits. Another part of the Defense of Marriage Act that says states need not recognize same-sex marriages from other states is not before the court. | The arguments came a day after another gay-marriage case was debated before the court, a challenge to California’s Proposition 8, which bans such unions. By comparison, Wednesday’s case is comparatively modest, raising the question of whether married same-sex couples are entitled to federal benefits. Another part of the Defense of Marriage Act that says states need not recognize same-sex marriages from other states is not before the court. |
| Chief Justice John G. Roberts Jr. and some of the other conservative justices expressed irritation that the case was before them at all because an appeals court threw out the law’s definition of marriage and the Obama administration agreed with that ruling but appealed it anyway. President Obama has declared that the Defense of Marriage Act is unconstitutional and refuses to defend it in court, though the government is continuing to enforce it until the Supreme Court offers a judgment. | Chief Justice John G. Roberts Jr. and some of the other conservative justices expressed irritation that the case was before them at all because an appeals court threw out the law’s definition of marriage and the Obama administration agreed with that ruling but appealed it anyway. President Obama has declared that the Defense of Marriage Act is unconstitutional and refuses to defend it in court, though the government is continuing to enforce it until the Supreme Court offers a judgment. |
| Chief Justice Roberts called that a contradiction by the president. “I don’t see why he doesn’t have the courage of his convictions” and not enforce the law if he thinks it is unconstitutional, the chief justice said. | Chief Justice Roberts called that a contradiction by the president. “I don’t see why he doesn’t have the courage of his convictions” and not enforce the law if he thinks it is unconstitutional, the chief justice said. |
| Before arguments about the merits began, the justices listened to lawyers argue whether the federal government could appeal in the first place, since it agreed with the lower court decision. | Before arguments about the merits began, the justices listened to lawyers argue whether the federal government could appeal in the first place, since it agreed with the lower court decision. |
| “This is wholly unprecedented,” Justice Antonin Scalia said. “You’re asking us to do something we’ve never done before to reach this case.” | “This is wholly unprecedented,” Justice Antonin Scalia said. “You’re asking us to do something we’ve never done before to reach this case.” |
| “It’s unusual,” acknowledged Srikanth Srinivasan, the principal deputy solicitor general. | “It’s unusual,” acknowledged Srikanth Srinivasan, the principal deputy solicitor general. |
| “No, it’s not unusual,” Justice Scalia said. “It’s totally unprecedented.” | “No, it’s not unusual,” Justice Scalia said. “It’s totally unprecedented.” |
| The procedural questions could allow the court to rid itself of the case without deciding it on the substance, which would have the effect of letting stand the appeals court ruling throwing out the law. But while the conservative justices expressed skepticism that the court should be deciding the matter, Justice Kennedy suggested there was an issue legitimately before them because “it seems to me there’s injury here.” | The procedural questions could allow the court to rid itself of the case without deciding it on the substance, which would have the effect of letting stand the appeals court ruling throwing out the law. But while the conservative justices expressed skepticism that the court should be deciding the matter, Justice Kennedy suggested there was an issue legitimately before them because “it seems to me there’s injury here.” |
| Nine states and the District of Columbia allow gay marriage, and about 18,000 same-sex couples married in California before voters there overturned a state Supreme Court decision that had established a right to such marriages. | Nine states and the District of Columbia allow gay marriage, and about 18,000 same-sex couples married in California before voters there overturned a state Supreme Court decision that had established a right to such marriages. |
| If the United States Supreme Court strikes down the challenged part of the 1996 law, married same-sex couples in those places would start to receive federal benefits. But such a decision would not require any state that does not allow same-sex marriage to permit it. | If the United States Supreme Court strikes down the challenged part of the 1996 law, married same-sex couples in those places would start to receive federal benefits. But such a decision would not require any state that does not allow same-sex marriage to permit it. |
| A ruling reaching that larger question would have to come from the case argued Tuesday, Hollingsworth v. Perry, No. 12-144. | A ruling reaching that larger question would have to come from the case argued Tuesday, Hollingsworth v. Perry, No. 12-144. |
| Wednesday’s case, United States v. Windsor, No. 12-307, concerns two New York City women, Edith Windsor and Thea Clara Spyer, who married in 2007 in Canada. Ms. Spyer died in 2009, and Ms. Windsor inherited her property. | Wednesday’s case, United States v. Windsor, No. 12-307, concerns two New York City women, Edith Windsor and Thea Clara Spyer, who married in 2007 in Canada. Ms. Spyer died in 2009, and Ms. Windsor inherited her property. |
| The 1996 law did not allow the Internal Revenue Service to treat Ms. Windsor as a surviving spouse, and she faced a tax bill of about $360,000 that a spouse in an opposite-sex marriage would not have had to pay. | The 1996 law did not allow the Internal Revenue Service to treat Ms. Windsor as a surviving spouse, and she faced a tax bill of about $360,000 that a spouse in an opposite-sex marriage would not have had to pay. |
| Ms. Windsor sued, and in October the United States Court of Appeals for the Second Circuit, in New York, struck down the 1996 law. The decision was the second from a federal appeals court to do so, joining one last May from a court in Boston. | Ms. Windsor sued, and in October the United States Court of Appeals for the Second Circuit, in New York, struck down the 1996 law. The decision was the second from a federal appeals court to do so, joining one last May from a court in Boston. |
| When the Supreme Court agreed in December to hear her case, Ms. Windsor, 83, said she was thrilled. “I wish Thea was here to see what is going on,” she said. | When the Supreme Court agreed in December to hear her case, Ms. Windsor, 83, said she was thrilled. “I wish Thea was here to see what is going on,” she said. |
| The case features some unusual alignments, thanks to the Obama administration’s shifting attitudes toward same-sex marriage and the 1996 law. Until 2011, the federal government enforced and defended the law, as is customary for all federal laws. | The case features some unusual alignments, thanks to the Obama administration’s shifting attitudes toward same-sex marriage and the 1996 law. Until 2011, the federal government enforced and defended the law, as is customary for all federal laws. |
| But in February of that year, Attorney General Eric H. Holder Jr. announced that he and President Obama had concluded that the law was unconstitutional and unworthy of defense in court. Mr. Holder added that the administration would continue to enforce the law. | But in February of that year, Attorney General Eric H. Holder Jr. announced that he and President Obama had concluded that the law was unconstitutional and unworthy of defense in court. Mr. Holder added that the administration would continue to enforce the law. |
| That effectively put the administration on both sides of the case. It agrees with Ms. Windsor that the law is unconstitutional, but will not pay her the tax refund she seeks. House Republicans, represented by Paul D. Clement, a former United States solicitor general, intervened in the case to defend the law, losing in the lower courts. | That effectively put the administration on both sides of the case. It agrees with Ms. Windsor that the law is unconstitutional, but will not pay her the tax refund she seeks. House Republicans, represented by Paul D. Clement, a former United States solicitor general, intervened in the case to defend the law, losing in the lower courts. |
| Even though the administration’s legal position prevailed in the lower courts, it filed an appeal to the Supreme Court, saying the matter should be decided by the nation’s highest tribunal. | Even though the administration’s legal position prevailed in the lower courts, it filed an appeal to the Supreme Court, saying the matter should be decided by the nation’s highest tribunal. |
| The Supreme Court appointed Vicki C. Jackson, a law professor at Harvard, to argue a position not fully supported by any party: that the case’s odd procedural posture means the court lacks jurisdiction to decide it. The court scheduled a separate 50-minute argument on that question. | The Supreme Court appointed Vicki C. Jackson, a law professor at Harvard, to argue a position not fully supported by any party: that the case’s odd procedural posture means the court lacks jurisdiction to decide it. The court scheduled a separate 50-minute argument on that question. |
| The main argument, scheduled to last an hour, featured a rematch between Solicitor General Donald B. Verrilli Jr. and Mr. Clement, who were adversaries a year ago in arguments over Mr. Obama’s health care law. Ms. Windsor is represented by Roberta A. Kaplan, a lawyer in New York with Paul, Weiss, Rifkind, Wharton & Garrison. | The main argument, scheduled to last an hour, featured a rematch between Solicitor General Donald B. Verrilli Jr. and Mr. Clement, who were adversaries a year ago in arguments over Mr. Obama’s health care law. Ms. Windsor is represented by Roberta A. Kaplan, a lawyer in New York with Paul, Weiss, Rifkind, Wharton & Garrison. |
| Justice Kennedy is thought to hold the crucial vote in the case. He wrote the majority opinions in Lawrence v. Texas, a 2003 decision that struck down a Texas law making gay sex a crime, and in Romer v. Evans, a 1996 decision that struck down a Colorado constitutional amendment that banned the passage of laws protecting gay men and lesbians. | Justice Kennedy is thought to hold the crucial vote in the case. He wrote the majority opinions in Lawrence v. Texas, a 2003 decision that struck down a Texas law making gay sex a crime, and in Romer v. Evans, a 1996 decision that struck down a Colorado constitutional amendment that banned the passage of laws protecting gay men and lesbians. |
| In the Windsor case, two of Justice Kennedy’s central concerns — states’ rights and gay rights — may be said to align, and many observers predict that he will vote to strike down the law. | In the Windsor case, two of Justice Kennedy’s central concerns — states’ rights and gay rights — may be said to align, and many observers predict that he will vote to strike down the law. |