5 Justices Wary of Law Denying U.S. Benefits to Gay Spouses
By ADAM LIPTAK and PETER BAKER

WASHINGTON — The Supreme Court appeared ready on Wednesday to strike down a central part of a federal law that defines marriage as the union of a man and a woman as a majority of the justices expressed reservations about the Defense of Marriage Act on the second day of intense arguments over the volatile issue of same-sex marriage.

Justice Anthony M. Kennedy, who most likely holds the decisive vote, returned again and again to the theme that deciding who is married is a matter for the states. The federal government, he said, should respect “the historic commitment of marriage and questions of the rights of children to the states.”

That suggests that he is prepared to vote with the court’s four liberal members to strike down the part of the 1996 law that recognizes only the marriage of opposite-sex couples for more than 1,000 federal laws and programs. Such a ruling would deliver federal benefits to married same-sex couples in the nine states, and the District of Columbia, that allow such unions.

If the 1996 law stands, Justice Kennedy said, “you are at real risk with running in conflict with what has always been the essence” of state power, which he said was to regulate marriage, divorce and custody.

All four members of the court’s liberal wing questioned the constitutionality of the law, though they largely focused on equal protection principles rather than on the limits of federal power.

Justice Ruth Bader Ginsburg, for instance, said the law effectively created “two kinds of marriage: the full marriage, and then this sort of skim milk marriage.”

Paul D. Clement, who served as solicitor general underPresident George W. Bush and is defending the law on behalf of House Republicans, argued that the federal government was entitled to use a uniform definition of marriage across the nation.

Mr. Clement said that countless laws over time had been enacted with the traditional definition of marriage in mind . When Congress approved the 1996 law, he said, it was worried that if one state extended the definition to include same-sex couples, it would effectively force other states and the federal government to recognize them, too. Lawmakers were concerned, he said, that “this is a redefinition of an age-old institution.”

Justice Elena Kagan said there was something else at work.

“Do we really think Congress was doing this for uniformity reasons or do we think the Congress’s judgment was infected by dislike, by animus, by fear?” she asked. She read a quote from the House record at the time the law was passed suggesting that lawmakers wanted to show “moral disapproval of homosexuality.”

Mr. Clement responded: “Of course the House report says that. I think if that’s enough to invalidate the statute you should invalidate the statute. But that’s never been enough.” He said that “just because a couple legislators may have had an improper motive” did not mean there was not a legitimate purpose to the law.

The arguments came a day after another gay-marriage case was debated before the court, a challenge to California’s Proposition 8, which bans such unions. That argument was murky and muddled, and many of the questions from the justices suggested that they were looking for a way to duck the central issue.

By comparison, Wednesday’s case was modest and the arguments clear. The court heard a preliminary 50-minute session on threshold issues, but they did not seem to threaten to send the case off the rails.

The court appointed Vicki C. Jackson, a law professor at Harvard, to argue a position not fully supported by any party: that the case’s odd procedural posture means the court lacks jurisdiction to decide it. The problem, she said, is that both sides want the same result. “There is not adversity,” she said. “They are in agreement.”

To be sure, there were some sharp questions.

“This is wholly unprecedented,” Chief Justice John G. Roberts Jr. said of the odd way the case had reached the court. “You’re asking us to do something we’ve never done before to reach this case.”

“It’s unusual,” acknowledged Srikanth Srinivasan, a deputy solicitor general.

“No, it’s not unusual,” Chief Justice Roberts said. “It’s totally unprecedented.”

After an appeals court struck down the challenged part of the law, the outcome the administration had urged, the Justice Department nonetheless appealed, saying the issue warranted an authoritative decision from the Supreme Court.

Chief Justice Roberts and some of the other more conservative justices expressed irritation that the case was before them at all and said President Obama’s stance – to enforce the law but not defend it – contradicted itself.

“I don’t see why he doesn’t have the courage of his convictions” and not enforce the law if he thinks it is unconstitutional, the chief justice said.

There were also questions about whether House Republicans had standing to defend the law. “Nobody is suggesting,” Mr. Clement said, “that this is a best-practices situation.” But there did not seem to be a consensus on the bench to avoid deciding the constitutionality of the law.

Dismissing the case on standing grounds would probably have the effect of letting stand the appeals court ruling that threw out the law. But while the conservative justices expressed skepticism that the court should be deciding the matter, Justice Kennedy suggested there was an issue legitimately before them because “it seems to me there’s injury here.”

Nine states and the District of Columbia allow gay marriage, and about 18,000 same-sex couples married in California before voters there overturned a state Supreme Court decision that had established that right.

If the United States Supreme Court strikes down the challenged part of the 1996 law, married same-sex couples in those places would start to receive federal benefits. But such a decision would not require any state that does not allow same-sex marriage to permit it.

A ruling reaching that larger question would have to come from the case argued on Tuesday, Hollingsworth v. Perry, No. 12-144.

Wednesday’s case, United States v. Windsor, No. 12-307, concerns two New York City women, Edith Windsor and Thea Clara Spyer, who married in 2007 in Canada. Ms. Spyer died in 2009, and Ms. Windsor inherited her property.

The 1996 law did not allow the Internal Revenue Service to treat Ms. Windsor as a surviving spouse, and she faced a tax bill of about $360,000 that a spouse in an opposite-sex marriage would not have had to pay.

Ms. Windsor sued, and in October the United States Court of Appeals for the Second Circuit, in New York, struck down the 1996 law. The decision was the second from a federal appeals court to do so, joining one last May from a court in Boston.

When the Supreme Court agreed in December to hear her case, Ms. Windsor, 83, said she was thrilled. “I wish Thea was here to see what is going on,” she said.

Until 2011, the federal government enforced and defended the law, as is customary for all federal laws.

But in February of that year, Attorney General Eric H. Holder Jr. announced that he and President Obama had concluded that the law was unconstitutional and unworthy of defense in court. Mr. Holder added that the administration would continue to enforce the law.

The main argument on Wednesday, lasted an hour and featured a rematch between Solicitor General Donald B. Verrilli Jr. and Mr. Clement, who were adversaries a year ago in arguments over Mr. Obama’s health care law.

Mr. Verrilli said the 1996 law violated equal protection and gave the example of “a soldier killed in the line of duty” who would not be entitled to “the dignity and solace of official notification to next of kin.”

Ms. Windsor is represented by Roberta A. Kaplan, a lawyer in New York with Paul, Weiss, Rifkind, Wharton & Garrison. She said the 1996 law enacted a novel form of discrimination “for the first time in our country’s history.”

Justice Kennedy wrote the majority opinions in the court’s two major gay rights cases, Lawrence v. Texas, a 2003 decision that struck down a Texas law making gay sex a crime, and in Romer v. Evans, a 1996 decision that struck down a Colorado constitutional amendment that banned the passage of laws protecting gay men and lesbians.

In the Windsor case, two of Justice Kennedy’s central concerns — states’ rights and gay rights — may be said to align, and his questions suggested that he will vote to strike down the law.