WASHINGTON -- The U.S. Supreme Court today heard from lawyers seeking to expand the right to same-sex marriage for their clients in the second of two landmark cases that could profoundly change the rights of gay and lesbian couples.
In today's case, lawyers for Edith Windsor asked the court to strike down the federal Defense of Marriage Act, which prevents the federal government from recognizing same-sex marriages.
Ms. Windsor claims the government violated the equal protection cause of the Constitution when it assessed her $363,000 in taxes on the estate she inherited from her deceased wife in New York, where same-sex marriage is legal. She would not have been billed for the tax had she been married to a man.
The Obama administration, which has become increasingly supportive of gay rights, enforced the tax rule but declined to defend the Defense of Marriage Act in court. That prompted the Bipartisan Legal Advisory Group comprising five members of Congress to intervene in court.
The group's intervention raises jurisdictional questions that the court will have to address before it can rule on the substantive issue: whether the federal government must treat same-sex marriages the same as traditional ones.
The justices wrestled with the fundamental question of whether the federal government or states should be the ultimate arbiters of the gay marriage issue.
"The federal government needs a uniform law and there is a revolution going on in the states," said Justice Stephen Breyer. "We either adopt the revolution and push it along or we stay out of it."
Justice Ruth Bader Ginsburg said DOMA was problematic because "it thwarts a state's decision.[There's no] social security benefit. Your spouse is sick but you can't visit. With these kind of circumstances one might well ask 'What kind of marriage is this?'"
Ginsberg said federal benefits are intertwined in every aspect of married life. "It's not that there's this little federal sphere and it's only a tax. It affects every area of life. It diminishes what states have said [and creates] two marriages: traditional marriage and this other thing."
Justice Elena Kagan asked whether Congress was motivated "by dislike, my fear, by animus" when it passed DOMA.
Attorneys for Ms. Windsor argue that exclusion of gay people from federal benefits is not rationally related to any government interest.
"Times can be blind. Back in 1996 people did not have the understanding that they have today," said Roberta A. Kaplan, attorney for Ms. Windsor. Congress based its DOMA vote "on the understanding that gay people were fundamentally different than straight people. There are no fundamental differences that can justify this kind of categorical discrimination."
Opponents of gay marriage, including those who argued a separate case before the court Tuesday, say the primary purpose of marriage is procreation and that gay couples should be excluded from the institution because they cannot reproduce.
Outside, a somewhat smaller crowd gathered today, mainly gay marriage supporters who held American and rainbow flags.
Many said they were encouraged that the issue is before the U.S. Supreme Court at all. A decade ago, no state recognized same-sex unions and 40, including Pennsylvania, still don't.
Diane Olson and Robin Tyler were lined up outside the courthouse this morning waiting for a seat inside. They were the first lesbian couple to be married in California in 2008 during the brief window between a state court ruling that opened the doors to gay marriage and a ballot initiative known as Proposition 8 that slammed the door shut again.
"It is really uncomfortable to be one of the 18,000 [same-sex] married couples, knowing other people" cannot marry their same-sex partners, said Ms. Olson, who also attended Tuesday's arguments.
She said she was disappointed in Tuesday's arguments, saying the justices seemed reluctant to rule on the issue and that she was disturbed by comments from the attorney for Proposition 8 supporters, who said gay marriage was a social experiment.
"I didn't like the questions I heard and I didn't like the answers," she said.
Sharon Lopez and Andrea Farney, civil rights attorneys from Triquetra Law in Lancaster, also were in line for a seat.
"This case is like Brown vs. Board of Education for the GLBT [gay, lesbian, bisexual and transgender] community. It's really important," said Ms. Lopez, who came both because of her interest in the legal arguments and her support of her gay son.
"I want to be able to tell my [future] grandchildren and their father than I was here. I want them to have the same opportunities as my grandchildren from straight children," she said.
The DOMA argument follows 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 without a significant ruling, the court appeared headed for a resolution that would mean the resumption of gay and lesbian weddings in California.
Marital status is relevant in more than 1,100 federal laws that include estate taxes, Social Security survivor benefits and health benefits for federal employees. Lawsuits around the country have led four federal district courts and two appeals courts to strike down the law's Section 3, which defines marriage. In 2011, the Obama administration abandoned its defense of the law but continues to enforce it. House Republicans are now defending DOMA in the courts.
Same-sex marriage is legal in nine states and the District of Columbia. The states are Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont and Washington. It also was legal in California for less than five months in 2008.
If the Supreme Court finds that it does not have the authority to hear the case, Windsor probably would still get her refund because she won in the lower courts. But there would be no definitive decision about the law from the nation's highest court, and it would remain on the books.
Reflecting the high interest in the cases, the court planned to release an audio recording of Wednesday's argument shortly after it concludes, just as it did Tuesday.
The Associated Press contributed to this report. Washington Bureau Chief Tracie Mauriello: 703-996-9292, email@example.com or on Twitter @pgPoliTweets. First Published March 27, 2013 3:00 PM