Supreme Court could invalidate part of marriage law

WASHINGTON -- Concluding two days of intense debate, the Supreme Court signaled Wednesday it could give a boost to same-sex marriage by striking down the federal law that denies legally married gay spouses a wide range of benefits offered to other couples.

A majority of justices indicated they will invalidate part of the federal Defense of Marriage Act -- if they can get past procedural problems similar to those that may affect Tuesday's case over California's ban on same-sex marriage.

Justice Anthony Kennedy, often the decisive vote, joined the four more liberal court members in raising questions about a provision of the 1996 Defense of Marriage Act that defines marriage as the union of a man and a woman for purposes of federal law. He said it intrudes on the rights of nine states that have chosen to recognize same-sex marriage.

The law is "not consistent with the historic commitment of marriage and of questions of the rights of children to the state," he said. Other justices said the law creates what Justice Ruth Bader Ginsburg called two classes of marriage, full and "skim-milk marriage."

If the court does strike down part of DOMA, it would represent a victory for gay rights advocates. But it would be something short of the endorsement of gay marriage nationwide that some envisioned when the justices agreed in December to hear the federal case and the challenge to California's ban. Decisions are not expected until late June.

Lawyer Paul Clement, representing the Republican-controlled House of Representatives, which has taken up defense of DOMA in place of the Obama administration, said overturning the law could create inequities.

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 is in New York, where same-sex marriages are legal, and Fort Sill is in Oklahoma, where they 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.

"I think it's time for the court to recognize that this discrimination, excluding lawfully married gay and lesbian couples from federal benefits, cannot be reconciled with our fundamental commitment to equal treatment under law," Verrilli said.

Lower federal courts have agreed with the challenge to the law brought by Edith Windsor, an 83-year-old New York woman. Windsor married Thea Spyer in 2007 in Canada after doctors told them that Spyer would not live much longer. Spyer, who suffered from multiple sclerosis for many years, died in 2009 and left everything she had to Windsor.

Because the U.S. government did not recognize the marriage, Windsor paid a federal estate tax of more than $360,000. She has sued for a refund.

"I think it went beautifully," Windsor told reporters outside the Supreme Court after the oral arguments. "I thought the justices were gentle . . . I didn't feel any hostility or any sense of inferiority. I felt we were very respected, and I think it's going to be good."