WASHINGTON -- The U.S. Supreme Court on Wednesday struggled again with its role in deciding the gay marriage issue, but did appear to lean toward striking down at least part of a 1996 law barring federal benefits to same-sex couples.
During nearly two hours of arguments, many of the justices, particularly liberals Ruth Bader Ginsburg and Elena Kagan, expressed deep concerns about the Defense of Marriage Act discriminating against same-sex couples married in states that legalize gay marriage. And Justice Anthony Kennedy, possibly a crucial swing vote in the case, questioned whether the federal government has the right to define marriage in a way that conflicts with states that traditionally regulate marriage.
"The question is whether the federal government ... has the authority to regulate marriage," Kennedy said at one point in the arguments.
But many of the justices indicated they may not decide the issue at all, expressing concern that House Republicans do not have the legal authority to defend the law in court in place of the executive branch. The Obama administration considers the law unconstitutional, joining the New York woman who challenged it in court.
If the justices decide they basically have no case to consider, they could leave unresolved for now the legal challenge to the federal law, and perhaps choose another case winding through the legal system, buying time as gay marriage continues to percolate as a political issue. Chief Justice John Roberts was particularly concerned, calling it "unprecedented" for the court to rule on a federal law when all parties in the case agreed it was unconstitutional.
Ginsburg, however, seemed ready to tackle the question now, saying DOMA undermines state laws that permit same-sex marriage.
"When your partner is sick. Social security. It's pervasive," she told former Solicitor General Paul Clement, who is defending the law for House Republicans. "It affects every area of life."
The court is reviewing a federal appeals court ruling last year in a case involving Edith Windsor, a New York woman who was denied federal estate tax benefits after her lesbian spouse died because the government would not recognize their marriage under DOMA.
The 2d U.S. Circuit Court of Appeals found the law unconstitutional because it discriminated against same-sex couples, denying them the same benefits as heterosexual couples. It was one of several rulings around the country striking down DOMA, including one San Francisco case involving Karen Golinski and her same-sex spouse, Amy Cunninghis.
Golinski was in the courtroom for Wednesday's arguments, and her case is still pending in the Supreme Court while the justices review the constitutionality of the federal law.
The Supreme Court's ruling in the DOMA case could be crucial to same-sex couples in California if they eventually gain the legal right to marry in the state because of its impact on federal benefits.
Complete audio from the DOMA arguments
The case is considered a more straightforward analysis of the gay marriage issue than the justices' review of California's Proposition 8, the 2008 voter-approved ban on same-sex nuptials. The court heard Proposition 8 arguments Tuesday in a test of a state's right to outlaw gay marriage.
Although the federal law confronts the justices with the controversial gay marriage issue, legal experts see the DOMA case as a basic anti-discrimination question. The justices must decide whether the federal government can deny benefits to same-sex couples legally married in states such as New York and can do that without tackling broader questions of marriage rights for gays and lesbians.
The Obama administration has been joined by gay rights groups, as well as hundreds of powerful businesses, including Apple, Google and Oracle, in urging the court to strike down the law. House Republicans intervened to defend DOMA's constitutionality.
Howard Mintz covers legal affairs. Contact him at 408-286-0236 or follow him at Twitter.com/hmintz