March 27, 2013 Leave a comment
It was back to court for same-gender marriage this morning. While yesterday’s Prop 8 arguments focused on the rights of those who want to be married, the DOMA challenge is more concerned with those who have already tied the knot.
At the heart of United States vs. Windsor is a powerful love story and the fight for equal protections and fair treatment under federal law. A victorious ruling could have a major impact on all 50 states, with a broader ruling leaving states with anti-gay marriage laws, like Idaho, in a legal quagmire.
“Edith Windsor is a New York woman in her eighties who married Thea Speyer, her same-sex partner of 40 years, in Canada six years ago. In 2009, Speyer passed away, leaving her entire estate to Windsor who was slapped with a $363,000 tax bill. If it hadn’t been for DOMA, the 1996 law that defined marriage at the federal level as the union between a man and a woman, she wouldn’t have had to pay any taxes. So she reached out to some gay and lesbian advocacy groups, found a lawyer willing to start the fight, won the support of the American Civil Liberties Union (ACLU), and filed suit in the U.S. District Court for the Southern District of New York in 2011,” the Atlantic reports.
Signed into law in 1996 by then President Bill Clinton, DOMA singles out lawfully married same-sex couples for unequal treatment under federal law. According to the law allows states not only to refuse to recognize valid civil marriages of same gender couples, Section 3 removes the couples out of all federal statutes, regulations, and rulings applicable to all other married people—thereby denying them over 1,100 federal benefits and protections.
The issue has divided the branches of government in recent years. As ABC News reports,”The Obama administration has argued that DOMA should be overturned, while House Republicans have stepped in to defend it, tasking the Bipartisan Legal Advisory Group (BLAG) with arguing for DOMA in federal court.”
It is the third section of the act, the section that denies benefits to same gender couples, that attorneys arguing before the Supreme Court are focused on. According to UPI,”Section 3, which is targeted, says, “In determining the meaning of any act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”
As the Washington Post reports, the Justices are possibly dealing with three issues when it comes to the DOMA challenge,”The first is the equal protection issue, which is much the same in content as in the Proposition 8 case. The second is whether the fact that the executive branch agrees with Windsor means that there isn’t a real controversy in this case, meaning the court doesn’t have jurisdiction. The third is whether BLAG would be harmed by DOMA being overturned, and thus whether it has standing to defend the law (a friend-of-the-court brief by Harvard professor Vicki Jackson argues that even Congress doesn’t have standing, and even if it did, BLAG wouldn’t).”
So what could the possible outcomes be? As we saw from the arguments yesterday, there are some Justices who appear to be reluctant to tackle the gay marriage issue at all, but since they have it’s highly unlikely that they will choose to forgo making any sort of rulings.
1. The Court could simply strike DOMA off the books. As Erin Fuchs, a reporter for Business Insider summarizes,”That would mean that the federal government would recognize same-sex marriage in the nine states where it’s already legal. In practical terms, gays could get the same federal tax breaks straight couples do, like not having to pay an estate tax.
2.The Court could uphold DOMA, Which would mean,”the status quo of gay couples being denied federal benefits would continue. Congress could ultimately try to do away with the law but that might be a long shot in an age of partisan gridlock.”
3. The Court may decide to deal with only the third section of the law and apply their ruling to those states nine states that already offer same-gender marriage. Such a ruling would still create a legal challenge for couples living in states like Idaho, but the Justices would be able to stall having to deal with the larger ”elephant in the room” for a few more years.
According to Reuters,”The decision by Obama to abandon the legal defense of the 1996 Defense of Marriage Act (DOMA) called into question his willingness to defend other laws passed by Congress and challenged in court, several conservative justices said.”
During this morning’s arguments,”Chief Justice John Roberts pressed government lawyer Sri Srinivasan on how the government will now decide which laws to defend. “What is your test?” Roberts asked.”
“Obama and his attorney general, Eric Holder, said in February 2011 they would cease defending the law because they believed it to be invalid under the U.S. Constitution,” reports the news agency.
But beyond that, there were some positive signs coming from the Justices. According to The Hill,”Justice Anthony Kennedy, the court’s swing vote, seemed to agree with the argument that DOMA interferes with states’ traditional right to define marriage.”
“The question is whether the federal government, under our federalism scheme, has the authority to regulate marriage,” Kennedy said.
The Hill reports that,”The court’s liberal justices also appeared hostile to DOMA.”
You can read listen to the audio of the arguments HERE when they are released. (Sometime around 11:00 am MST.)