The Supreme Court on Wednesday will tackle a constitutional challenge to the law that prevents legally married gay Americans from collecting federal benefits generally available to straight married couples, the second of back-to-back gay marriage cases before the court this week.
The justices will consider a provision that defines marriage as between a man and a woman for the purpose of deciding who can receive a range of federal benefits, as part of the 1996 Defense of Marriage Act (DOMA).
The DOMA arguments follow a landmark hearing on California's Proposition 8 ban on same-sex marriage, during which several Supreme Court justices indicated they might lean toward issuing a narrow ruling.
Lower federal courts have struck down the DOMA measure, and now the justices, in nearly two hours of scheduled argument, 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. Lawsuits around the country have led four federal district courts and two appeals courts to strike down the law's Section 3, which defines marriage.
In 2011, the Obama administration abandoned its defense of the law but continues to enforce it. House Republicans are now defending DOMA in the courts.
The justices chose for their review the case of Edith Windsor, 83, of New York, who sued to challenge a $363,000 federal estate tax bill after her partner of 44 years died in 2009.
Windsor, who goes by Edie, married Thea Spyer in 2007 in Canada after doctors told them that Spyer would not live much longer. She suffered from multiple sclerosis for many years. Spyer left everything she had to Windsor.
There is no dispute that if Windsor had been married to a man, her estate tax bill would have been zero.
The U.S. 2nd Circuit Court of Appeals in New York agreed with a district judge that the provision of DOMA deprived Windsor of the constitutional guarantee of equal protection of the law.
Like the Proposition 8 case from California, Windsor's lawsuit could falter on a legal technicality without a definitive ruling from the high court.
The House Republicans, the Obama administration and a lawyer appointed by the court especially to argue the issue were to spend the first 50 minutes Wednesday discussing whether the House Republican leadership can defend the law in court because the administration decided not to, and whether the administration forfeited its right to participate in the case because it changed its position and now argues that the provision is unconstitutional.
If the Supreme Court finds that it does not have the authority to hear the case, Windsor probably would still get her refund because she won in the lower courts. But there would be no definitive decision about the law from the nation's highest court, and it would remain on the books.
On Tuesday, the justices weighed a fundamental issue: Does the Constitution require that people be allowed to marry whom they choose, regardless of either partner's gender?
If the justices choose to rule broadly, they could overturn Prop 8 and in doing so invalidate every other restriction on gay marriage in the country.
But the justices suggested Tuesday they could decide the case without issuing a ruling that ripples through all 50 states.
Several justices, including some liberals who seemed open to gay marriage, raised doubts that the case was properly before them. Justice Anthony Kennedy, the potentially decisive vote on a closely divided court, suggested that the court could dismiss the case with no ruling at all.
Such an outcome would almost certainly allow gay marriages to resume in California but would have no impact elsewhere.
Click to listen to the Supreme Court arguments in the Prop 8 case
Kennedy said he feared the court would go into "uncharted waters" if it embraced arguments advanced by gay marriage supporters. But lawyer Theodore Olson, representing two same-sex couples, said that the court similarly ventured into the unknown in 1967 when it struck down bans on interracial marriage in 16 states.
Kennedy challenged the accuracy of that comment by noting that other countries had had interracial marriages for hundreds of years.
There was no majority apparent for any particular outcome and many doubts expressed about the arguments advanced by lawyers for the opponents of gay marriage in California, by the supporters and by the Obama administration, which is in favor of same-sex marriage rights.
Chief Justice John Roberts told Olson that it seemed supporters of gay marriage were trying to change the meaning of the word "marriage" by including same-sex couples.
Lawyers representing supporters of the California ban known as Proposition 8 argued that the court should not override the democratic process and impose a judicial solution that would redefine marriage in the some 40 states that do not allow same-sex couples to wed.
Americans as a whole are divided on the issue. A Fox News poll released Thursday showed 49 percent of voters favor legalizing gay marriage, while 46 percent oppose it.
That marks a shift since the question was first asked in 2003 -- when 32 percent said gay marriage should be legal, and 58 percent opposed it.
Support for gay marriage has grown the most among Democrats, and self-described moderates and independents. Still, support for gay marriage rose by 10 points among Republicans over the past decade, according to the Fox News polling.
Gay marriage has been approved in nine states -- Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, Washington -- and the District of Columbia. But 31 states have amended their constitutions to prohibit same-sex marriage. North Carolina was the most recent example last May.
The Associated Press contributed to this report.
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