WASHINGTON - It could be late June before the U.S. Supreme Court rules on gay marriage, but justices hinted they might strike down part of the federal law that denies legally married gay spouses many benefits offered to other couples.
Such a ruling would be a victory for gay rights advocates after intense debate Tuesday and Wednesday in the most closely watched high court cases so far this year. But it would fall short of the endorsement of gay marriage nationwide that some envisioned when the court agreed to hear a challenge to the Defence of Marriage Act and a challenge to California's ban on same-sex marriage.
Public opinion has been shifting rapidly over the past decade in favour of gay marriage, and Chief Justice John Roberts suggested that perhaps gays and lesbians don't need special protection from the court anymore.
"As far as I can tell, political leaders are falling all over themselves to endorse your side of the case," Roberts told the lawyers who would like to see the Defence of Marriage Act, which defines marriage as between a man and a woman, struck down.
Former President Bill Clinton, who signed the act into law in 1996, has joined a number of leading politicians who have come out recently in support of gay marriage. Those include President Barack Obama, who first expressed his support when he ran for re-election last year.
Only a decade has passed since the Supreme Court ruled that homosexual sex was not illegal. Since then, growing exposure to gay celebrities and characters in popular media has combined with a rising young generation of Americans who see little or no taboo. Meanwhile, gay rights groups have taken a measured, state-by-state approach to making gay marriage legal.
Since the Defence of Marriage Act became law, nine states and the District of Columbia, which includes Washington, have made it legal for gays and lesbians to marry. A ruling that gives gay married couples equal rights to benefits would affect those states where gay marriage is already legal.
Passions outside the courthouse were not as high Wednesday as they were the day before, when thousands of supporters on both sides of the debate marched and made noisy arguments of their own.
Justice Anthony Kennedy, often the decisive vote in close cases, joined the four more liberal justices Wednesday in questioning the part of the Defence of Marriage Act that defines marriage as the union of a man and a woman.
He said it appears to intrude on the power of states that have chosen to recognize same-sex marriages. "You are at real risk of running in conflict with what has always been thought to be the essence of the state police power, which is to regulate marriage, divorce, custody," he said. Affected are more than 1,100 statutes in which marital status is relevant, including tax breaks for married couples, survivor benefits and health insurance for federal employees.
Other justices said the federal law creates what Justice Ruth Bader Ginsburg called two classes of marriage, full and "skim-milk marriage."
The Obama administration's top Supreme Court lawyer, Donald Verrilli, argued that that part of the law 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.
Roberts wondered why Obama continues to enforce a law he believes is unconstitutional.
"I don't see why he doesn't have the courage of his convictions and execute not only the statute but do it consistent with his view of the Constitution, rather than saying, 'Oh, we'll wait till the Supreme Court tells us we have no choice,'" Roberts said.
With the Obama administration choosing not to defend the law, that job was left to opposition Republicans in the House of Representatives, whose lawyer argued that the federal government needed a uniform definition of marriage.
The case was brought by lawyers for 83-year-old Edith Windsor of New York, who 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.
There is no dispute that if Windsor had been married to a man, her estate tax bill would have been zero. Instead, her estate tax bill was $363,000.
Wednesday's 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 so, the court appeared headed for a resolution that would mean the resumption of gay marriage in California, the most populous state in the country and one that often has set the tone on social issues.
Reflecting the high interest in the cases, the court released a rare same-day audio recording of Wednesday's argument, just as it did for Tuesday's proceedings. Wednesday's audio can be found at: http://tinyurl.com/d626ybg . Tuesday's is at: http://tinyurl.com/dxefy2a
Mark Sherman contributed to this report. Follow him at www.twitter.com/shermancourt
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