Attorney Roberta Kaplan said DOMA violates equal protection rights under the U.S. Constitution for not just Windsor, but all married gay couples. (Washington Blade photo by Michael Key)

Questioning at the Supreme Court during oral arguments on Wednesday was just as intense as the previous day as justices grilled attorneys on standing and federalism issues related to the Defense of Marriage Act.

The prospects of the court striking down the 1996 law seem strong as no justices expressed any particular love for DOMA, but it’s possible the court may not reach consideration of the constitutionality of the law because of standing and jurisdiction issues.

Associate Justice Ruth Bader Ginsburg, a Clinton appointee, expressed concern over DOMA because benefits — including Social Security survivor benefits and access to family medical leave — and withheld from married same-sex couples under the law.

Under DOMA, Ginsburg said one might ask the question “What kind of marriage is this?” and compared the law to a statute that creates “full marriage, and then this sort of skim milk marriage.”

Associate Justice Anthony Kennedy, a Reagan appointee who’s considered a swing vote in the case, made a lot of inquiries on DOMA, but at one point may have tipped his hand when he talked about the “real risk” of encroaching on state power to define marriage.

At issue in the case is Section 3 of DOMA, which prohibits federal recognition of same-sex marriage. As a result of that 1996 law, Edith Windsor had to pay $363,000 in estate taxes in 2009 upon the death of her spouse, Thea Spyer.

The courtroom was just as packed for the DOMA arguments as it was for the Prop 8 arguments. Among those in attendance were Human Rights Campaign President Chad Griffin, Senior Adviser to President Obama Valerie Jarrett and House Minority Leader Nancy Pelosi (D-Calif.).

Roberta Kaplan, a New York-based private attorney working in coordination with the American Civil Liberties Union, said DOMA violates equal protection rights under the U.S. Constitution for not just Windsor, but all married gay couples.

“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.

Arguing on behalf of DOMA was Paul Clement, a former U.S. solicitor general under President George W. Bush who was hired by House Republicans to defend the law after the Obama administration declined to do so in February 2011.

Clement said DOMA helps create uniformity for the federal government as the democratic process is underway deciding the issue of marriage.

“I do think for purposes of the federalism issue, it really matters that all DOMA does is take this term where it appears in federal law and define it for purposes of federal law,” he said. “It would obviously be a radically different case if Congress had, in 1996, decided to try to stop states from defining marriage in a particular way or dictate how they would decide it in that way.”

At one point, Associate Justice Elena Kagan brought up the House report from the passage of DOMA, quoting where it said Congress approved the law to “express moral disapproval of homosexuality.”

Clement responded by saying legislators having an “improper motive” shouldn’t be enough for the Supreme Court to overturn DOMA.

“And if that’s enough to invalidate the statute, then you should invalidate the statute,” Clement said. “But that has never been your approach, especially under rational basis or even rational basis-plus, if that is what you are suggesting.”

U.S. Solicitor General Donald Verrilli, who’s taken up litigation against DOMA on behalf of the Obama administration, also argued against DOMA on the basis of equal protection.

“What Section 3 does is exclude from an array of federal benefits lawfully married couples,” Verrilli said. “That means that the spouse of a soldier killed in the line of duty cannot receive the dignity and solace of an official notification of next of kin.”

Further, he said DOMA should be subject to heightened scrutiny, or a greater assumption it’s unconstitutional, because of the “terrible discrimination” faced by gay people throughout history.

Verrilli also disputed Clement’s argument that DOMA helps ensure uniformity for the U.S. government, saying “if anything, it makes federal administration more difficult.”

Standing was so much of an issue as part of the DOMA case that justices allotted extended time and the first half of the oral arguments to consider the issue.

There are two questions: whether House Republican-led Bipartisan Legal Advisory Group has standing to defend DOMA in court, and whether the Supreme Court has jurisdiction to hear the case because the U.S. government appealed even though it got what it wanted when the district ruled against the anti-gay law.

Vicki Jackson, a Harvard law professor hired by the court to answer these questions, made her case for why BLAG doesn’t have standing and the court doesn’t have jurisdiction to decide the issue.

Jackson said the U.S. government lacks standing to appeal because it has not asked the court to overturn lower courts’ decisions, it has asked to affirm them.

“The government has not asked this court to overturn the rulings below so it doesn’t have to pay the $365,000,” Jackson said. “It has asked this court to affirm. And the case or controversy requirement that we’re talking about are nested in an adversarial system where we rely on the parties to state their injuries and make their claims for relief.”

She also expressed doubts about BLAG’s standing, saying separation of powers “will not be meaningful” if Congress stays out of defense of a statute unless it thinks the executive branch is doing its job badly.

Clement maintained BLAG has standing because the House has an interest in preserving a law if the executive branch determines it won’t defend the measure in court.

“The House’s single most important prerogative, which is to pass legislation and have that legislation, if it’s going to be repealed, only be repealed through a process where the House gets to fully participate,” Clement said.

Associate Justice Sonia Sotomayor, an Obama appointee, expressed skepticism that BLAG has standing to defend DOMA in court.

“But the appointment of BLAG is strange to me because it’s not in the statute, it’s in the House rules,” Sotomayor said.

Deputy Solicitor General Sri Srinavasan argued the court has jurisdiction to defend DOMA, pointing to court precedent created under INS v. Chadha, an immigration-related case that came before the court in 1982. Srinavasan also said the U.S. government still suffers aggreivement, which allows it to appeal the case.

Associate Justice Antonin Scalia expressed displeasure with the Justice Department’s decision to stop defending the law and creating a situation where it’s appealing a case that was decided in its favor.

“I’m wondering if we’re living in this new world where the attorney general can simply decide, yeah, it’s unconstitutional, but it’s not so unconstitutional that I’m not willing to enforce it, if we’re in this new world, I don’t want these cases like this to come before this court all the time,” Scalia said.

It’s difficult to say if the court will rule on the basis of standing because justices challenged the views on whichever attorney was speaking — whether they arguing in favor of standing or not. A ruling on this basis would likely more limited on its impact on gay couples as opposed to a nationwide ruling striking down DOMA.