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| Five Justices Are Skeptical of Ban on Benefits to Gay Spouses | Five Justices Are Skeptical of Ban on Benefits to Gay Spouses |
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| WASHINGTON — A majority of the justices on Wednesday asked skeptical questions about 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 asked skeptical questions about 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, who most likely holds the decisive vote, returned again and again to the theme that deciding who is married is a matter for the states. The federal government, he said, should respect “the historic commitment of marriage and the rights of children to the states.” | Justice Anthony M. Kennedy, who most likely holds the decisive vote, returned again and again to the theme that deciding who is married is a matter for the states. The federal government, he said, should respect “the historic commitment of marriage and the rights of children to the states.” |
| That suggests that he is prepared to vote with the court’s four liberal members to strike down the part of the 1996 law that defines marriage as the union of a man and a woman for the purposes of more than 1,000 federal laws and programs. Such a ruling would deliver federal benefits to married same-sex couples in the nine states, and the District of Columbia, that allow such unions. | That suggests that he is prepared to vote with the court’s four liberal members to strike down the part of the 1996 law that defines marriage as the union of a man and a woman for the purposes of more than 1,000 federal laws and programs. Such a ruling would deliver federal benefits to married same-sex couples in the nine states, and the District of Columbia, that allow such unions. |
| If the 1996 law stands, Justice Kennedy said, “you are at real risk with running in conflict with what has always been the essence” of state power, which he said was to regulate marriage, divorce and custody. | If the 1996 law stands, Justice Kennedy said, “you are at real risk with running in conflict with what has always been the essence” of state power, which he said was to regulate marriage, divorce and custody. |
| 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.” |
| Justice Sonia Sotomayor said the law violated equal protection principles. “You’re treating married couples differently,” she said, | Justice Sonia Sotomayor said the law violated equal protection principles. “You’re treating married couples differently,” she said, |
| 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 was entitled to use a uniform definition of marriage across the nation in connection with more than 1,000 federal laws and programs regulating 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 was entitled to use a uniform definition of marriage across the nation in connection with more than 1,000 federal laws and programs regulating everything from taxes to Social Security benefits. |
| Mr. Clement said that those laws and programs had originally been passed with the traditional definition of marriage in mind and that when Congress approved the Defense of Marriage Act, it was worried 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 laws and programs had originally been passed with the traditional definition of marriage in mind and that when Congress approved the Defense of Marriage Act, it was worried 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.” |
| Justice Elena Kagan said there was something else at work. | Justice Elena Kagan said there was something else at work. |
| “Do we really think Congress was doing this for uniformity reasons or do we think the Congress’s judgment was infected by dislike, by animus, by fear?” she asked. She read a quote from the House record at the time the law was passed suggesting that lawmakers wanted to show “moral disapproval of homosexuality.” | “Do we really think Congress was doing this for uniformity reasons or do we think the Congress’s judgment was infected by dislike, by animus, by fear?” she asked. She read a quote from the House record at the time the law was passed suggesting that lawmakers wanted to show “moral disapproval of homosexuality.” |
| Mr. Clement responded: “Of course the House report says that. I think if that’s enough to invalidate the statute you should invalidate the statute. But that’s never been enough.” He said that “just because a couple legislators may have had an improper motive” did not mean there was not a legitimate purpose to the law. | Mr. Clement responded: “Of course the House report says that. I think if that’s enough to invalidate the statute you should invalidate the statute. But that’s never been enough.” He said that “just because a couple legislators may have had an improper motive” did not mean there was not a legitimate purpose to the law. |
| 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. That argument was murky and muddled, and many of the questions from the justices suggested that they were looking for a way to duck the central issue. | 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. That argument was murky and muddled, and many of the questions from the justices suggested that they were looking for a way to duck the central issue. |
| By comparison, Wednesday’s case was modest and the arguments clear. The court heard a preliminary 50-minute session on threshold issues, but they did not seem to threaten to send the case off the rails. | By comparison, Wednesday’s case was modest and the arguments clear. The court heard a preliminary 50-minute session on threshold issues, but they did not seem to threaten to send the case off the rails. |
| The 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 problem, she said, is that both sides want the same result. “There is not adversity,” she said. “They are in agreement.” | The 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 problem, she said, is that both sides want the same result. “There is not adversity,” she said. “They are in agreement.” |
| To be sure, there were some sharp questions. | To be sure, there were some sharp questions. |
| “This is wholly unprecedented,” Justice Antonin Scalia said of the odd way the case had reached the court. “You’re asking us to do something we’ve never done before to reach this case.” | “This is wholly unprecedented,” Justice Antonin Scalia said of the odd way the case had reached the court. “You’re asking us to do something we’ve never done before to reach this case.” |
| “It’s unusual,” acknowledged Srikanth Srinivasan, a deputy solicitor general. | “It’s unusual,” acknowledged Srikanth Srinivasan, a 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.” |
| After an appeals court struck down the challenged part of the law, the outcome the administration had urged, the Justice Department nonetheless appealed, saying the issue warranted an authoritative decision from the Supreme Court. | After an appeals court struck down the challenged part of the law, the outcome the administration had urged, the Justice Department nonetheless appealed, saying the issue warranted an authoritative decision from the Supreme Court. |
| Chief Justice John G. Roberts Jr. and some of the other more conservative justices expressed irritation that the case was before them at all and said President Obama’s stance – to enforce the law but not defend it – contradicted itself. | Chief Justice John G. Roberts Jr. and some of the other more conservative justices expressed irritation that the case was before them at all and said President Obama’s stance – to enforce the law but not defend it – contradicted itself. |
| “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. | “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. |
| There were also questions about whether House Republicans had standing to defend the law. “Nobody is suggesting,” Mr. Clement said, “that this is a best-practices situation.” But there did not seem to be a consensus on the bench to avoid deciding the constitutionality of the law. | There were also questions about whether House Republicans had standing to defend the law. “Nobody is suggesting,” Mr. Clement said, “that this is a best-practices situation.” But there did not seem to be a consensus on the bench to avoid deciding the constitutionality of the law. |
| Dismissing the case on standing grounds would probably have the effect of letting stand the appeals court ruling that threw 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.” | Dismissing the case on standing grounds would probably have the effect of letting stand the appeals court ruling that threw 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 that right. | 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 that right. |
| 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 on Tuesday, Hollingsworth v. Perry, No. 12-144. | A ruling reaching that larger question would have to come from the case argued on 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. |
| Until 2011, the federal government enforced and defended the law, as is customary for all federal laws. | 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. |
| The main argument on Wednesday, lasted an hour and 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. | The main argument on Wednesday, lasted an hour and 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. |
| Mr. Verrilli said the 1996 law violated equal protection and gave the example of “a soldier killed in the line of duty” who would not be entitled to “the dignity and solace of official notification to next of kin.” | Mr. Verrilli said the 1996 law violated equal protection and gave the example of “a soldier killed in the line of duty” who would not be entitled to “the dignity and solace of official notification to next of kin.” |
| Ms. Windsor is represented by Roberta A. Kaplan, a lawyer in New York with Paul, Weiss, Rifkind, Wharton & Garrison. She said the 1996 law enacted a novel form of discrimination “for the first time in our country’s history.” | Ms. Windsor is represented by Roberta A. Kaplan, a lawyer in New York with Paul, Weiss, Rifkind, Wharton & Garrison. She said the 1996 law enacted a novel form of discrimination “for the first time in our country’s history.” |
| Justice Kennedy wrote the majority opinions in the court’s two major gay rights cases, 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 wrote the majority opinions in the court’s two major gay rights cases, 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 his questions suggested 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 his questions suggested that he will vote to strike down the law. |