Supreme court justices lay down strong challenge to gay marriage law

US supreme court justices on Wednesday strongly challenged a federal law banning recognition of same-sex marriages as discriminatory, motivated by prejudice, and diminishing the power of individual states to regulate marriage.

The 1996 Defense of Marriage Act (Doma) faces an uncertain future as the court's usual swing vote on social issues, Justice Anthony Kennedy, aligned with the four liberal judges to strongly question the legitimacy of the law and the authority of the federal government to impose a definition of marriage as only between a man and a woman on those US states which permit same-sex unions. The law prevents same-sex spouses from receiving federal benefits, tax breaks and some legal protections.

The liberal justices, during the second day of historic hearings about gay unions, at times found themselves in the unusual position of emphasising states' rights – a position usually defended by the court's conservatives – as they painted Doma as unreasonably discriminating against same-sex couples legally married under the laws of nine states and Washington DC.

"It really diminishes what states have said about marriage," said Justice Ruth Bader Ginsburg.

Ginsburg dismissed descriptions of Doma as merely having an administrative impact, saying it "effects every area of life" for gay couples.

"There are two kinds of marriage. Full marriage and the skimmed-milk
marriage," she said.

Justice Elena Kagan questioned the motivation for the law, saying Congress passed it in a climate of "animus" and "dislike" of homosexuals, and of "moral judgment".

Stephen Breyer questioned why it was necessary to single out gay people as subject to a law barring them from equal treatment. He called the discrimination "irrational" in law.

But while opponents of Doma were predicting its imminent demise, even if the justices strike the law down it will not establish a right to gay marriage – merely an obligation on the federal government to recognise it on those states where it is legal.

The Obama administration has already repudiated the legislation and supports federal court rulings striking it down.

The US solicitor general, Donald Verrilli, told the supreme court that gay people are a "persecuted minority", and asked why the spouse of a gay soldier killed in the line of duty should not receive the same benefits as those given to heterosexual couples. However, Verrilli faced questions over whether obliging the federal government to recognise same-sex marriages where they are legal would not create another kind of discrimination – namely against gay couples in states where they are not legal.

Paul Clement, the former US solicitor general who argued and lost the case against Barack Obama's healthcare reforms, defended Doma as merely creating uniformity in how same-sex couples are treated across the country for administrative purposes.

Clement was forced to concede that the law was passed in a climate of congressional hostility towards gay people, but said that was not enough to make it unconstitutional.

The case, coming a day after the supreme court considered the constitutional legitimacy of a California referendum that overturned same-sex marriage in the state, pitted the White House against Republican leaders in Congress angered that the Obama administration will no longer defend Doma.

But before the justices heard arguments over the law's constitutionality, they considered opinions over whether Congress had the right to defend Doma in court. The issue was regarded as important enough for the court to hear separate arguments, and to appoint its own lawyer, Vicki Jackson, to present the case for why Congress does not have "standing" to act in defence of Doma.

Jackson told the court that once Congress passes laws, responsibility for enforcing them shifts to the executive, and the legislature ceases to have active involvement.

Antonin Scalia suggested that the supreme court has a role to play, because the federal government has taken the unusual step of no longer defending a law still on the statute books.

But some of the liberal justices questioned the Republican leadership's authority to bring the issue to the supreme court, saying that it was not done with the approval of both houses of Congress.

Breyer and Samuel Alito raised the issue of whether the president was sidestepping his constitutional obligations to fully execute the law by opposing Doma.