WASHINGTON -- The Supreme Court heard arguments Wednesday in the second blockbuster same-sex marriage case of the week, a challenge to the 1996 Defense of Marriage Act, which denies federal benefits to same-sex couples even if they are married in states that recognize their marriage. Here are a few key questions and answers from the arguments:

Q: How did the justices appear to be leaning on upholding the federal law?

A: They appeared to be leaning all over the place. There could be five justices, the four liberals and Anthony Kennedy, prepared to strike down the law in a narrow ruling based on the notion the federal law denies equal rights to couples in states where gay marriage is legal. This could allow the court to take a cautious approach that does not wade into the larger questions of whether gays and lesbians have a constitutional right to marry.

This artist rendering shows Paul Clement, second from left, with Solicitor General Donald B. Verrilli Jr. seated, right, addresses the Supreme Court in
This artist rendering shows Paul Clement, second from left, with Solicitor General Donald B. Verrilli Jr. seated, right, addresses the Supreme Court in Washington, Wednesday, March 27, 2013, as the court heard arguments on the Defense of Marriage Act (DOMA) case. Justices, from left are, Sonia Sotomayor, Stephen Breyer, Clarence Thomas, Antonin Scalia, Chief Justice John Roberts, and Justices Anthony Kennedy, Ruth Bader Ginsburg, Samuel Alito and Elena Kagan. ((AP Photo/Dana Verkouteren))

Q: Could the court avoid deciding the constitutionality of DOMA?

A: Yes, quite easily, and many of the justices seemed to be searching for a way to do that. The court is concerned that House Republicans do not have a right to defend the law in place of the executive branch, which usually defends federal law but in this case is not because the president considers the law unconstitutional. The court also was worried that it has never decided the legality of a federal law when both main parties -- in this case the plaintiff and federal government -- agree with the lower court ruling striking it down.


Advertisement

Q: What would happen if the court decides not to decide the merits of the case?

A: In theory, that would let stand a lower-court ruling finding the law unconstitutional, although that ruling only applies in a number of East Coast states. It would leave the matter unresolved nationally, and likely lead to pressure on the court to decide one of the other DOMA challenges on its docket.

Q: What's the significance of the DOMA case to California?

A: If DOMA is struck down for same-sex couples who are legally married, it would help about 18,000 same-sex couples legally married in California before Proposition 8 passed because they would be entitled to federal benefits. And likewise, if California's ban on same-sex marriage is ultimately either invalidated by the courts or repealed by the voters, all same-sex couples who marry in this state would get the same federal benefits as heterosexual couples.

Howard Mintz covers legal affairs. Contact him at 408-286-0236 or follow him at Twitter.com/hmintz.


A group from Alabama prays in front of the Supreme Court in Washington, Wednesday, March 27, 2013, before the court’s hearing on the Defense of
A group from Alabama prays in front of the Supreme Court in Washington, Wednesday, March 27, 2013, before the court's hearing on the Defense of Marriage Act (DOMA). In the second of back-to-back gay marriage case, the Supreme Court is turning to a constitutional challenge to the law that prevents legally married gay Americans from collecting federal benefits generally available to straight married couples. ((AP Photo/Carolyn Kaster))