In the second of back-to-back gay marriage cases, the Supreme Court is turning to a constitutional challenge to the law that prevents legally married gay Americans from collecting federal benefits generally available to straight married couples.
A section of the 1996 Defense of Marriage Act says marriage may only be a relationship between a man and a woman for purposes of federal law, regardless of state laws that allow same-sex marriage.
Lower federal courts have struck down the measure, and now the justices, in nearly two hours of scheduled argument Wednesday, will consider whether to follow suit.
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.
Atty. Paul Cambria, WBEN Legal Analyst
WTOP's Nick Ianelli At The Supreme Court
After the first day of Supreme Court deliberations over same-sex marriage, it's unclear exactly where the justices come down on the issue. It is clear, however, where public opinion is headed: A CBS News poll released this week provides the latest evidence that voters are increasingly accepting of same-sex marriages.
The tide of public opinion could arguably work in the favor of gay rights activists as they await decisions from the Supreme Court on two different cases relating to same-sex marriage.
At the same time, the quickly changing public sentiment on gay rights goes to the heart of the conservative argument in both cases -- that the issue of marriage should be left up to voters and the legislative branches of government.
The conservative case
Yesterday, the court heard arguments in Hollingsworth v. Perry, which challenges the constitutionality of Proposition 8, California's same-sex marriage ban.
Charles Cooper, the attorney for Prop. 8's supporters, did not open his argument with mention of protecting traditional marriage but ibegan urging the justices to protect the democratic process.
"The accepted truth...is one that is changing and changing rapidly in this country as people throughout the country engage in an earnest debate over whether the age-old definition of marriage should be changed to include same-sex couples," he said.
Today, the court hears arguments in United States v. Windsor, the case against a section of the Defense of Marriage Act (DOMA) that denies legally married same-sex couples federal benefits, such as Social Security benefits.
In its brief defending the law on behalf of House Republicans, the Bipartisan Leadership Advisory Group (BLAG) argues, "DOMA permitted states to perform their role as 'laboratories of democracy,' while at the same time ensuring that no one state's experiment would be imposed on other states or on the federal government. DOMA thus reflects an interest in ensuring that, at a time of unprecedented reconsideration of the traditional definition of marriage, each sovereign in our federal system may decide this important issue for itself."
"The one thing that the parties in this case seem to agree on is that marriage is very important," Justice Samuel Alito said.
Justice Anthony Kennedy, who may be the swing vote in the Prop. 8 case, seemed to agree "there's substance to the point that sociological information is new."
On the other hand, Kennedy seemed sympathetic to the fact that, in spite of existing same-sex marriage bans, same-sex couples are well accepted in places like California. They run households and start families just as opposite-sex couples do.
"There are some 40,000 children in California... that live with same-sex parents, and they want their parents to have full recognition and full status," Kennedy said. "The voice of those children is important in this case, don't you think?"
In the latest CBS News poll, one-fifth of Americans who have come around to supporting same-sex marriage said they changed their minds after getting to know someone who is gay.
With same-sex marriage quickly gaining support among the public and political leaders, the Supreme Court justices may not want to be left behind.
"Justice Anthony Kennedy and Chief Justice John Roberts may be very concerned about how their votes contribute to their legacy," Winkler said. The relatively young Roberts may be on the court for another 25 years, Winkler noted.
Justice Sonia Sotomayor seemed open to the idea that banning same-sex marriage was simply discriminatory.
"Outside of the marriage context, can you think of any other rational basis, reason, for a state using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them?" she asked. "Is there any other rational decision-making that the government could make?"