A majority of justices raised questions in oral arguments Wednesday about the federal Defense of Marriage Act, indicating the Supreme Court may strike down a key part of the law that denies legally married same-sex couples the same benefits provided to heterosexual spouses.
A ruling is expected within three months on the constitutionality of the 1996 law that defines marriage for federal purposes as only between one man and one woman.
Wednesday's arguments concluded two days of presentations before the high court on one of the most prevalent social issues of this era -- the right of gay and lesbian couples to wed and receive the full benefits of law provided to heterosexual couples.
Afterward, Edith "Edie" Windsor, 83, stood on the steps of the courthouse -- near the "Equal Justice Under Law" slogan engraved above -- and proclaimed something she hid for decades before her challenge against the act known as DOMA.
"I am today an out lesbian, OK, who just sued the United States of America, which is kind of overwhelming for me," she said. She had just watched almost two hours of oral arguments before the nation's highest court on how she had to pay higher estate taxes than someone in a heterosexual marriage.
Windsor tried to explain to reporters why she and her late spouse, Thea Spyer, married in New York when the law allowed it after decades together.
Marriage, she said, is "a magic word, for anyone who doesn't understand why we want it and why we need it."
"We did win in the lower court," Windsor added, then later predicted: "I think it's gonna be good."
Under DOMA, Social Security, pension and bankruptcy benefits, along with family medical leave protections and other federal provisions, do not apply to gay and lesbian couples legally married in states that recognize such unions.
Windsor was forced to assume an estate tax bill much larger than heterosexual married couples would have to pay. Because her decades-long partner was a woman, the federal government did not recognize their same-sex marriage in legal terms, even though their home state of New York did.
"What kind of marriage is that?"
The court appeared divided along ideological lines during the arguments about whether DOMA is discriminatory and steps on state marriage laws for gays and lesbians.
If legally married homosexuals were being denied more than 1,100 federal benefits, "what kind of marriage is that?" asked Justice Ruth Bader Ginsburg, who said the discriminatory effect is "pervasive."
"What gives the federal government the right to define marriage?" asked Justice Sonia Sotomayor.
The potential swing vote, Justice Anthony Kennedy, also questioned the reach of DOMA, saying it presents a "real risk of running into traditional state police power to regulate marriage."
Kennedy's point caused court observers to speculate he would join the four normally liberal-leaning justices to create a majority against the act.
On the other side, Chief Justice John Roberts repeatedly asked whether it would step on state power to do the opposite of DOMA -- pass a law providing full federal benefits to any legally married same-sex couple.
When Windsor's lawyer argued in court there was a "sea change" afoot today in support of same-sex marriage that leaves DOMA outdated, Roberts said that is because of "the political effectiveness of those on your side" swaying public opinion.
Roberts and Justice Antonin Scalia also suggested DOMA could still remain in place as a valid extension of congressional authority, as 41 states do not allow same-sex marriage.
Paul Clement, the high-profile lawyer hired by House Speaker John Boehner and fellow Republican legislators to defend DOMA, suggested the act was passed as a "cautious approach" in response to initial efforts in some states to change state marriage laws to include homosexuals.
"In 1996 something was happening" in the country, Clement said, adding that Congress wanted to created uniformity in the federal sphere and not sow confusion in states that did not want same-sex marriage.
However, Justice Elena Kagan drew an audible gasp from the packed courtroom by quoting from the official House reports of 17 years ago, when legislators stated one reason to pass DOMA was to "express moral disapproval" over gays and lesbians being allowed to wed.
It was not until 2004 that Massachusetts became the first state to legalize same-sex marriage.
No consensus was reached from the bench on the gateway or jurisdictional questions -- whether House Republicans were on solid legal footing when they stepped in and defended the law after President Barack Obama and his Justice Department reversed their position by concluding DOMA was unconstitutional.
The administration changed its mind after initially defending the law before a federal judge hearing the Windsor lawsuit.