WASHINGTON – A majority of Supreme Court justices Wednesday cast doubt on the constitutionality of a federal law defining marriage as a heterosexual union, hinting at a ruling that might bolster the drive at letting gays marry nationwide.
On the second day of arguments over one of the nation’s most polarizing issues, Justice Anthony Kennedy, the likely swing vote, suggested he viewed the federal government as overstepping its authority with the law, which limits the benefits available to gay couples.
The law is “not consistent with the historic commitment of marriage and of questions of the rights of children to the state,” he said.
At the same time, Kennedy and other justices grappled with procedural questions that threaten to derail the case.
The court’s first-ever arguments on the issue come as support for gay marriage hits record highs among politicians and the public. The justices Tuesday, in a separate case, suggested that they might not rule directly on a constitutional right to gay marriage, a step that could disappoint both sides. Nine states and the District of Columbia now recognize same-sex marriages.
In Wednesday’s case, the Obama administration joined a New York widow in urging the court to strike down the 1996 Defense of Marriage Act, known as DOMA. Under the law, gay spouses can’t claim the federal benefits available to other married couples, including the rights to file a joint tax return and receive Social Security survivor benefits.
Justice Ruth Bader Ginsburg said that when legally married couples can’t receive such federal benefits, “One might well ask, what kind of marriage is this?”
Support for gay nuptials has soared since 1996, when DOMA was approved 342-67 in the House and 85-14 in the Senate before President Bill Clinton signed the measure into law. Clinton now opposes the law.
The Obama administration is continuing to enforce the law, even while arguing against it in court. That stance prompted Chief Justice John Roberts to say the administration lacks “the courage of its convictions.”
The administration is asking the high court to say for the first time that laws that discriminate against gays should be given “heightened scrutiny,” a stricter standard than the court uses for other types of laws. Racial minorities and women are already protected by such scrutiny.
Roberts questioned whether gays needed any special constitutional protection. “Political figures are falling all over themselves to endorse your side of the case,” Roberts told Roberta Kaplan, a lawyer arguing against the law.
Congressional Republicans, led by House Speaker John Boehner, are defending DOMA. They contend it promotes traditional marriage and makes it more likely that children will grow up in a nurturing environment.
Their attorney, Paul Clement, said the government’s goal is uniform treatment of taxpayers in the various states. Under questioning from Justice Stephen Breyer, Clement said the federal government also could decide not to recognize state-law marriages based on matters such as differing ages of consent.
“You’re saying uniform treatment’s good enough, no matter how odd it is, no matter how irrational,” Breyer said.
Justice Elena Kagan questioned whether uniformity was the real motivating force behind the law. She pointed to a congressional report that said lawmakers were expressing a “moral disapproval of homosexuality.”
The law “is not called the Federal Uniform Marriage Benefits Act,” U.S. Solicitor General Donald Verrilli said. “It’s called the Defense of Marriage Act.”
The court spent an hour with procedural issues. One question is whether the Constitution gives the court power to decide the case, given that both sides agree the law is unconstitutional.
Almost 300 employers are urging the court to strike down DOMA, arguing that the law costs businesses by forcing them to set up parallel benefits systems for gay and heterosexual married employees. The group includes Goldman Sachs Group Inc., Citigroup Inc., Amazon.com Inc. and Pfizer Inc.