WASHINGTON – A majority of justices expressed skepticism Wednesday about the constitutionality of a federal law denying marriage benefits to legally wed gay and lesbian couples as the Supreme Court weighed whether Congress even has the power to regulate marriage.
On the second and final day of a pair of historic Supreme Court hearings on gay marriage, the justices on Wednesday heard a challenge to the 1996 Defense of Marriage Act, which defines marriage as a union between one man and one woman.
Interrupting an attorney who argued the law does not violate basic principles of federalism, Justice Ruth Bader Ginsburg ticked off some of the 1,100 federal marriage benefits the law denies to gay couples who have been legally married in nine states: they cannot take family medical leave, collect Social Security benefits, or avoid an estate tax upon a spouse’s death.
“With that set of attributes, one might ask, what kind of marriage is this?” Ginsburg said.
The law affects every aspect of married life, its regulations so pervasive that “you’re really diminishing what the state has said is marriage,” Ginsburg said. As a result, the nation is left with two classes of marriage: “Full marriage and skim-milk marriage,” she said, drawing laughter from the packed courtroom.
Justice Anthony Kennedy, considered a swing vote, concurred that the law is entwined with citizens’ daily lives and said that Congress risked running into conflict with states’ powers to authorize gay marriage.
Justice Sonia Sotomayor questioned the ability of the federal government to single out a class of people they didn’t like—in this case, homosexuals, for discrimination.
When Congress does something it has never done before, such as creating a federal rule that impacts one category of people, it raises a “red flag” about its motives, said Justice Elena Kagan. She dismissed attorney Paul Clement’s claims that the law was created to promote uniformity, and instead suggested that it was done out of “dislike and fear.”
Kagan, Sotomayor, and Ginsburg are from the more liberal wing of the court. On the conservative side, Justice Antonin Scalia questioned why the Obama administration had decided the law was unconstitutional while continuing to enforce it.
The arguments attracted another crowd to the Supreme Court steps. J. Mary Sorrell, a lesbian justice of the peace from Massachusetts, returned to her position early Wednesday morning to voice her support for marriage equality.
“To me, today is the big one. This is about discrimination written into federal law, and I can’t imagine it not getting overturned despite some of the conservatives on the court,” said Sorrell, who has officiated numerous weddings for gay couples from around the world.
But even for married gay couples in Massachusetts, a state that legally recognizes their vows, they cannot file joint tax returns, collect spousal disability, take family medical leave, or otherwise benefit from the more than 1,000 federal laws and programs that married heterosexual couples receive.
President Clinton, who signed the 1996 law, recently recommended that it be overturned.
President Obama, who last May became the first president to announce his support for gay marriage, has said he think DOMA is unconstitutional and his administration has declined to defend it. The House Republican leadership is defending the law in court. (Democratic leadership views the law as unconstitutional.)
The case before the court involves an 83-year-old New York widow, Edith Windsor, who was forced to pay more than $363,000 in federal estate taxes after the death of her female spouse because their marriage is not recognized under federal law. The estate tax would not have been owed had Windsor been married to a man.
If the court decides that same-sex spouses are legally entitled to receive federal benefits, the law would be relevant in any state that has legalized gay marriage. Currently nine states, including Massachusetts, allow such unions.
A Gallup poll two weeks ago found that the majority of Americans – 54 percent – would vote for a law conferring marriage benefits such as those for insurance, taxes or Social Security to spouses of federal employees in same-sex marriages. Only 39 percent said they would vote against such a law.
“The court has a really important role here and its job is to protect minorities,” said Ara Gershengorn, partner with the Boston-based law firm Foley Hoag and the co-author of an amicus brief filed on behalf of former cabinet secretaries and other senior administration officials who are against the Defense of Marriage Act.
“It may be that the political process will get there,” Gershengorn said, referring to growing popular support for gay marriage. “But the job of the court is to determine if this is violating the constitutional rights of these individuals today.”
As on the first day of arguments, a line snaked down the block in front of the court house of people eager to witness the hearing. Joe Dougherty, a 12-year-old from Philadelphia, spent the night on the sidewalk bundled in layers of blankets with his mother, Kathy Dougherty, and Carey Buck, his stepmother. It was his idea. They’ve been in line since 1 p.m. Tuesday and could no longer feel their toes.
“This is a historic case that’s very important to our family,” said Buck, who wed Dougherty in a civil union in New Jersey in 2011. Their union is not recognized in Pennsylvania. “You shouldn’t have to pick your state, where you want to move your family, based on the law.”
“We don’t tell people we have a civil union. We tell people we’re married,” Dougherty said. “We have a family and we’re committed to each other. Separate really isn’t equal.”
Joe told a story of the day his stepmother was in the hospital for four days because of an abscessed wisdom tooth. “They wouldn’t let my mom stay overnight,” he said. “They got two security guards to escort her out. It’s not fair.”
“The guards told me, point blank, that if you were her husband, you could stay,” Dougherty said. “It was awful.”
Down the block, about half a dozen protestors from the Westboro Baptist Church in Topeka, Kansas stood on a corner and held signs denouncing gay people while media and gay marriage supporters looked on. As the protestors sang “Another One Bites the Dust,” a gay marriage supporter ran in front of the protestors and raised an “Equality for All” sign.
Several feet away Brian Cain, of Raleigh, N.C., held his own sign in homage to his husband, a Mexican who is not allowed to join Cain in the United States because their marriage is not recognized under the federal law.
On one side of the sign, Cain had scrawled: “In Mexico, he’s my husband” above their official marriage license and a heart-shaped photo of the couple, dressed in matching purple shirts and silver gray vests on their wedding day. On the other side: “But in the United States, he’s only my friend.”
The two have not seen each other since their wedding reception in Mexico in January but talk via Skype every day. With tears welling and his voice choking, Cain, who came to the courthouse plaza alone, said, “I just had to be here to show we’re no different than anybody else. My marriage matters just as much as anybody else’s.”
Massachusetts, which became the first state to legalize gay marriage in 2003, also was the first state to challenge the law in 2009. Last May, the US appeals court in Boston granted equal federal benefits to gay couples in much of New England on the grounds that DOMA violates the federal equal protection clause.
A ruling upholding the federal law defining marriage as a union between a man and a woman would not impact states that allow same-sex marriage, but it would prevent legally married gay couples from receiving federal benefits and tax breaks for married people.
But like Tuesday’s case over California’s voter-approved ban on gay marriage, the court could determine that it does not have jurisdiction over the matter because the Obama administration has decided against defending the law.
The court is expected to hand down decisions in both cases in June.Tracy Jan can be reached at email@example.com. Follow her on Twitter @GlobeTracyJan.