In a major gay-rights case, the Supreme Court indicated Wednesday it could strike down the law that prevents legally married gay couples from receiving a range of federal benefits that go to other married people.
Justice Anthony Kennedy, often the decisive vote in close cases, joined the four more-liberal justices in raising questions about a provision of the federal Defense of Marriage Act that is being challenged at the court.
Kennedy said the law appears to intrude on the power of states that have chosen to recognize same-sex marriages. Other justices said the law creates what Justice Ruth Bader Ginsburg called two classes of marriage, full and “skim-milk marriage.”
The federal law affects a range of benefits available to married couples, including tax breaks, survivor benefits and health insurance for spouses of federal employees.
It still is possible the court could dismiss the case for procedural reasons, though that prospect seemed less likely than it did in Tuesday’s argument over gay marriage in California.
The motivation behind the 1996 federal law, passed by large majorities in Congress and signed by President Bill Clinton, was questioned repeatedly by Justice Elena Kagan.
She read from a House of Representatives report explaining that the reason for the law was “to express moral disapproval of homosexuality.” The quote produced an audible reaction in the courtroom.
Paul Clement, representing the House Republican leadership in defending the law, said the more-relevant question is whether Congress had “any rational basis for the statute.” He supplied one, the federal government’s interest in treating same-sex couples the same no matter where they live.
Clement said the government does not want military families “to resist transfer from West Point to Fort Sill because they’re going to lose their benefits.” The U.S. Military Academy at West Point is in New York, where same-sex marriage is legal, and Fort Sill is in Oklahoma, where gay marriages are not legal.
Opposing Clement was the Obama administration’s top Supreme Court lawyer, Donald Verrilli, who said the provision of DOMA at issue, Section 3, impermissibly discriminates against gay people.
“This statute is not called the Federal Uniform Benefits Act,” Verrilli said. The administration wants the court to apply a level of scrutiny it applies to discrimination against other disadvantaged groups and that makes it harder for governments to justify those laws.
Both Verrilli and Roberta Kaplan, the lawyer for 83-year-old Edith Windsor, who sued over DOMA, told the court that views about gay people and marriage have shifted dramatically since 1996.
“Why are you so confident in that judgment? How many states” allow same-sex unions? Justice Antonin Scalia asked Kaplan.
Nine, she said.
“So there’s been a sea change since 1996,” Scalia said, doubtfully.
But Chief Justice John Roberts jumped on the idea of a rapid shift in opinion to suggest that perhaps gays and lesbians do not need special protection from the court.
“As far as I can tell, political leaders are falling all over themselves to endorse your side of the case,” Roberts said.
The justices stepped into the dispute after lower federal courts ruled against the measure.
The DOMA argument followed Tuesday’s case over California’s ban on same-sex marriage, a case in which the justices indicated they might avoid a major national ruling on whether America’s gays and lesbians have a right to marry. Even without a significant ruling, the court appeared headed for a resolution that would mean the resumption of gay and lesbian weddings in California.
Marital status is relevant in more than 1,100 federal laws that include estate taxes, Social Security survivor benefits and health benefits for federal employees.