Paul Clement, with Solicitor Gen. Donald Verrilli Jr., seated, addresses… (Dana Verkouteren, Associated…)
WASHINGTON — After two days of arguments on same-sex marriage, the Supreme Court seemed poised to give gays and lesbians a major legal victory but probably not the immediate right to marry in all states that many of them had hoped for.
Justice Anthony M. Kennedy's questions during Wednesday's oral arguments suggested that he was leaning toward joining the court's four liberals in taking an important but limited step to strike down federal discrimination against gay couples whose home states allow them to marry. On Tuesday, these same justices seemed ready to deal with California's gay marriage ban in a way that would invalidate it without establishing a nationwide precedent.
Wednesday's arguments focused on the Defense of Marriage Act, or DOMA, which denies federal benefits to same-sex spouses. Several justices questioned how the government could recognize two classes of marriage, one that is honored and respected, and another for people "they don't like" who get second-class treatment, said Justice Sonia Sotomayor.
There is "full marriage, and then this sort of skim-milk marriage," Justice Ruth Bader Ginsburg said.
The arguments on both days demonstrated how much had changed since Congress passed the act overwhelmingly in 1996 and President Clinton signed it into law. At the time, members of the House, in the official report accompanying the law, said it was passed in part to "express moral disapproval of homosexuality."
When Justice Elena Kagan read that quote to Paul D. Clement, the attorney defending the law for the House Republican leadership, he disavowed that purpose. If that were the only reason for the law, he said, "then you should invalidate the statute." But Clement said the law should be upheld because it establishes a uniform definition of marriage.
Striking down the act could set a constitutional precedent that would undermine other laws that treat gay men and women differently because of their sexual orientation. And it would open federal spousal benefits, including those related to taxes and Social Security, to 130,000 same-sex couples who are legally married.
Depending on how broadly the justices write their opinion, it could lead to national recognition of same-sex marriage as a constitutional right. For now, however, the justices seem unlikely to go that far. On Tuesday, they appeared to be looking for a way to dispose of the case challenging California's Proposition 8, which banned same-sex marriage, without invalidating marriage laws in other states.
If gay marriage is restored in California, nearly 30% of the U.S. population would be living in states that allow gays to marry. Several other states are also moving toward changing their laws to allow same-sex marriage; three or four are considered likely to do so this year.
The more states that allow same-sex marriage, the more people the decision in Wednesday's case will affect. Nine states and the District of Columbia now authorize same-sex marriage.
A Supreme Court decision striking down the marriage act would be a landmark in the law, but would have no immediate effect in states where opposition to gay marriage remains intense.
The Obama administration's top courtroom attorney said the law is an example of unjust discrimination that hurts real families and their children. It "means that the spouse of a soldier killed in the line of duty cannot receive the dignity and solace of an official notification of next of kin," said Solicitor Gen. Donald Verrilli Jr. This discrimination based solely on a person's sexual orientation violates "our fundamental commitment to equal treatment under law," he said.
Justice Kennedy said he saw a different reason for striking down the act. Throughout American history, states have decided who is married. The federal law interferes with the "traditional authority of states," he said more than once Wednesday.
Clement, a former solicitor general, urged the justices to step back and allow the "democratic process" to decide the next steps on gay marriage.
Under the democratic process, "you have to persuade somebody you're right," he said. States are debating gay marriage, and some are making changes. "Allow the democratic process to continue," he argued.
Kagan objected, noting that the federal government had long followed the states' definition of who is married. "This statute does something that has not been done before," she said. It treats some married couples as deserving of federal benefits and it excludes other married couples.
Before this week, some legal experts thought Chief Justice John G. Roberts Jr. might not strongly oppose the growing move toward gay marriage. But in the two days of arguments, he voiced opposition to the idea of redefining marriage, an institution that he said has existed since "time immemorial" and "didn't include homosexuals."
During Wednesday's arguments, he spoke of the "politically powerful ... lobby supporting the enactment of same-sex marriages."