A three-judge panel of the 2nd U.S. Circuit Court of Appeals will hear lawyers argue whether the law should be abandoned or preserved; a ruling is not expected for months. Already, the law has been struck down by a federal appeals court in Boston and five trial-level judges, including U.S. District Judge Barbara Jones in Manhattan.
She ruled that the law intrudes upon the states' regulation of domestic relations. Her June decision came after Edith Windsor sued the government in November 2010 because she was told to pay $363,053 in federal estate tax after her partner of 44 years, Thea Spyer, died in 2009. They had married in Canada in 2007.
The Justice Department is siding with lawyers for Windsor after President Barack Obama and Attorney General Eric Holder in February 2011 told the Department of Justice to defend the law no longer.
Windsor's lawyers said in court papers that the law does not benefit anyone because it defines marriage "to exclude married same-sex couples from the rights, privileges and obligations the federal government affords to all other married couples."
The law, which denies federal recognition of same-sex marriages and affirms the right of states to refuse to recognize such marriages, was passed by Congress and signed by President Bill Clinton in 1996 after it appeared in 1993 that Hawaii might legalize it. Since then, many states have banned gay marriage but several have approved it, including Massachusetts and New York.
In written arguments, former attorneys general Edwin Meese III and John Ashcroft say it is unprecedented that the government would not defend a law that does not involve concerns over the separation of powers.
"Historically, the president's constitutional obligation to 'take care that the laws be faithfully executed' has been understood to include the vigorous defense of acts of Congress when they are challenged in court," they said.
"It is no small step for a federal court to conclude that a coordinate branch of the federal government has acted irrationally," warned the Bipartisan Legal Advisory Group of the House of Representatives, which is defending the law.
The Justice Department said the law was motivated largely by disapproval of gays and lesbians and there was no governmental interest to justify the law's "differential treatment of same-sex couples who are legally married under the laws of their states."
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