WASHINGTON (CN) - The Supreme Court on Wednesday tipped its hand on its feelings about a challenge to the Defense of Marriage Act, spending nearly half of the 110-minute hearing arguing about whether the court should even address the issue.
United States v. Windsor was filed by a now-83-year-old widow who had to pay $363,000 extra in federal taxes after her wife died, because DOMA does not acknowledge same-sex marriage.
The Supreme Court seemed to struggle with the definition of marriage - but had no trouble criticizing the Obama administration's refusal to defend it.
Though the administration has said it will not defend the law, it will continue to enforce it until the Supreme Court tells it otherwise.
Chief Justice John Roberts and Justice Antonin Scalia found that troubling.
"So this is totally unprecedented. You're asking us to do something we have never done before to reach the issue in this case," Roberts told Sri Srinivasan, who represented the federal government.
Paul Clement defended the law on behalf of the Bipartisan Legal Advisory Group of the House of Representatives (BLAG).
Clement argued that Congress passed the law in 1996 not "in animus," but to stop the slippery slope created by Hawaii's recognition of same-same marriage and the problem faced by couples who go to Hawaii to get married and return to their home states.
Clement also bashed the administration on its inconsistent approach to the problem, citing a government motion to dismiss that asks the district court not to dismiss.
"That would give you intellectual whiplash," said Justice Anthony Kennedy, who is considered the swing vote on the issue.
Commentators on the left and right said Wednesday that they expected the four liberal justices would gladly join Kennedy in ruling that DOMA infringes on states' rights to regulate marriage - without addressing the discrimination issue.
For the second day in a row, justices cautioned that the issue of defining marriage may not be ripe for the court to address, but several justices indicated where they stand on the issue.
Justice Kennedy noted that 1,100 federal statutes already mention marriage.
Justice Ruth Bader Ginsburg said that the institution of marriage exists outside of the tax question, that it affects all aspects of life, and that limiting those rights creates "this sort of skim milk marriage."
Edith Windsor's attorney Roberta Kaplan told the justices that her client would not have had to pay more than $363,000 in federal estate taxes after her wife died, had the state of New York recognized their marriage.
"Because of DOMA, many thousands of people who are legally married under the laws of nine sovereign states and the District of Columbia are being treated as unmarried by the federal government solely because they are gay," Kaplan said. "These couples are being treated as unmarried with respect to programs that affect family stability, such as the Family Leave Act, referred to by Justice Ginsberg. These couples are being treated as unmarried for purposes of federal conflict of interest rules, election laws and anti-nepotism and judicial recusal statutes."
Kaplan stopped short of directly accusing BLAG of bigotry, stating that the country had a much different view of homosexual marriage in 1996.
"I think it comes from a moral understanding today that gay people are no different, and that gay married couples' relationships are not significantly different from the relationships of straight married people," she said.
The court appointed attorney Vicki Jackson, of Massachusetts, to address the issue of jurisdiction.
She noted the Obama administration's approval of an appeals court decision that section three of the Defense of Marriage Act is unconstitutional.
The DOMA defines marriage as a legal union between one man and one woman.
On Tuesday, the Supreme Court heard arguments on California's Proposition 8, which prohibited same-sex marriage in that state.
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