A slim majority of Supreme Court justices voiced skepticism Wednesday about the 1996 Defense of Marriage Act, signaling they may be willing to overturn the law that denies federal benefits to gay and lesbian married couples.
But the court's conservatives, led emphatically by Chief Justice John Roberts, defended the law, a clear sign that any decision probably would come by a 5-4 count.
It was the second day of historic arguments about same-sex marriage at the nation's highest court. As on Tuesday, when the justices appeared disinclined to issue a far-reaching decision on California's same-sex marriage ban, it was not clear whether they felt the case was even properly before them. That could result in no substantive ruling at all.
Justice Anthony Kennedy, the court's perennial swing vote, questioned whether the federal government "has the authority to regulate marriage," a responsibility traditionally reserved to the states.
Justice Elena Kagan created a buzz in the courtroom by noting that the House of Representatives report accompanying the statute cited "moral disapproval" of homosexuality, which she called "a pretty good red flag" for discrimination.
Roberts and other conservatives on the court punched holes in the case against the law presented by the federal government and lawyers for Edith Windsor, 83, a lesbian widow from New York whose lawsuit could make gay rights history.
Windsor married her longtime partner, Thea Spyer, in 2007. When Spyer died in 2009, Windsor was socked with a $363,000 estate tax bill that she would have avoided if Thea had been "Theo," because heterosexual spouses transfer wealth tax-free.
Justice Antonin Scalia cast doubt on the idea that a majority of Americans are ready to embrace same-sex marriage, noting that only nine states have approved the practice. Scalia indicated that did not seem like "a sea change since 1996." Roberts indicated the real change is that "political figures are falling over themselves" to line up behind gay marriage.
After Wednesday's arguments, Windsor stepped to a microphone and pumped her fist to the delight of a crowd assembled at the base of the court's steps. "I think it went great," she said. "I didn't feel any sense of hostility. I felt very respected."
Lawyers on both sides faced questioning on a range of issues, from the Obama administration's decision not to defend the law once it was declared unconstitutional in lower federal courts to the authority of the House Republican leadership to take up the law's defense.
"You are asking us to do something that we have never done before," Roberts told U.S. Deputy Solicitor General Sri Srinivasan, referring to the government's decision not to defend the law while continuing to enforce it. "It is totally unprecedented." If the president decided that the marriage law was unconstitutional, Roberts asked, "why doesn't he have the courage of his convictions" and simply not enforce it?
White House spokesman Josh Earnest said all administrations must enforce laws they disagree with.
President Obama himself said in an interview with Telemundo that the court should make a clear decision. "My hope is that the court reaches these issues and that we end up living in a country where everybody is treated fairly," he said.
Edith Windsor, 83, acknowledges her supporters as she leaves the Supreme Court on Wednesday in Washington. The court heard oral arguments on the constitutionality of the Defense of Marriage Act.
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