Supreme Court may strike down DOMA gay marriage law, experts say

Legal experts said Wednesday that U.S. Supreme Court justices suggested they might strike down the Defense of Marriage Act that denies federal benefits to legally married gay couples.

It marked the second landmark gay-rights case the justices considered this week. On Tuesday, they heard testimony on Proposition 8, California’s ban on same-sex marriages.

Some members of the U.S. Supreme Court appeared to be concerned Wednesday that a federal law barring recognition of same-sex marriages interfered with state rights, a law professor said.

Loyola law professor Dougles NeJaime, after reading a transcript of Wednesday’s hearing on the Defense of Marriage Act, said it suggested the court might rule in favor of gay rights but on the grounds the federal law improperly exerted control over the states.

NeJaime said Justice Anthony Kennedy, whose vote is considered pivotal in gay-rights cases, clearly seemed skeptical of the law.

The section being challenged denies federal benefits to spouses of same-sex couples.

Even if it is struck down, same-sex couples would only benefit if they lived in states that recognized same-sex marriage, LeJaime said.

“It will be a big issue for military families who don’t have control over where they live,” NeJaime said.

The Times’ David Savage reported that Justice Ruth Bader Ginsburg said she too found the alleged discrimination troubling. Some couples can have “full marriage” under the law, but others who are gay are left with “skim-milk marriage,” she said.

Justice Sonia Sotomayor said the law creates two classes of married couples. “You are treating married [gay] couples differently,” she said. “You are saying that New York’s married couples [who may be gay] are different than Nebraska’s,” she said, even though both are legally married under state law.

She questioned whether the government “can create a class they don’t like -- here homosexuals --and ... decide they get different benefits on that basis.”

Because of the federal law, about 130,000 same-sex couples are denied benefits such as filling a joint tax return or receiving Social Security survivor benefits.

Former Solicitor General Paul Clement, defending DOMA, said Congress passed the law to set a “uniform” definition of marriage. The government “has a powerful interest in uniformity,” he said.

A spokesman for House Speaker John Boehner spokesman said in a statement that “a law’s constitutionality is determined by the courts – not by the Department of Justice. As long as the Obama administration refuses to exercise its responsibility, we will.”

Backers of gay rights said they were pleased with Wednesday’s hearing.

Gay-rights lawyer Jon W. Davidson said Wednesday that the U.S. Supreme Court was likely to permit married same-sex couples to have federal benefits.

Davidson, legal director of Lamba Legal, said there appeared to be five justices willing to strike down the federal prohibition on recognizing same-sex marriages.

FULL COVERAGE: Same-sex marriage ban

The high court seemed likely to overturn the law either on the grounds that it discriminates against lesbians and gay men without a valid reason or because it usurps the traditional state power to regulate marriage, he said.

He said Justice Anthony Kennedy, considered a swing vote in gay-rights cases, seemed particularly concerned that the federal government was exerting its authority over the states on marriage questions. Marriage is typically a matter governed by state law.

Davidson also noted that Kennedy again raised the fact that children of same-sex couples are affected. Kennedy also expressed concern for the children of gay unions during Tuesday’s argument over Proposition 8.

“The children clearly seem to be on his mind,” Davidson said.

He said there was an audible gasp in the courtroom when Justice Elena Kagan read from an official congressional report that one of the stated purposes of DOMA was to express moral disapproval of homosexuality.

“I think a lot of people didn’t realize that Congress had been that upfront” about its motives when the law was passed in 1996, he said.

Kate Kendell, executive director of the National Center for Lesbian Rights, said after attending the court’s hearing that she believed there were five justices willing to rule on the constitutionality of the federal law.

“By June, DOMA will be history,” Kendell said.

She said the justices appeared more relaxed during the hearing on the federal law than they had been Tuesday in the arguments over Proposition 8, California’s ban on same-sex marriage.

“When the judges first walked in [Tuesday], they all looked a bit grim-faced,” said Kendell. “And today they walked in, and they were all smiling a bit.”

She surmised that the court might be more deeply divided over the Proposition 8 case than the DOMA challenge.

She said she was “really stunned” when Justice Samuel Alito, who she expects will vote in favor of Proposition 8 and the federal marriage law, used the phrase “loving and committed” to describe same-sex couples.

“When he uttered that sentence, there was a little bit of an intake of breath from several people sitting around me,” Kendell said. “Even a justice who is clearly diametrically opposed to us on this policy issue talked about us in very human terms imbued with dignity.”

For the last decade, Tom Carpenter and his husband, Art Andrade, have taken every step forward – and back – in the changing landscape of rights for gay couples in California.

They are one of the estimated 18,000 gay married couples legally recognized by the state of California, but still not considered married in the eyes of the federal government.

As the Supreme Court takes up Proposition 8 and the federal Defense of Marriage Act, Carpenter is playing close attention to the latter, which would allow him and Andrade to share survivor’s benefits and other federal perks straight couples enjoy.

“Our love is as valuable as anybody else’s love,” said Carpenter, an attorney, by phone. Carpenter, 65 and Andrade, 54, have been together for 20 years, and live in the Hollywood Hills. “We have the burdens and responsibilities, so we should get the benefits of our commitment to each other, too.”

Carpenter says that as they get older, he’s particularly concerned that his Social Security benefits might not go to his husband. “I’m at the point now where I’m getting close to being eligible for Social Security,” he said. “That’s really disconcerting to me to think I’ve worked 40 years to get these benefits and that he would get nothing. That weighs pretty heavily on us.”

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Twitter: @MauraDolan