Opinion: Supreme Court Will Rule in Favor of Gay Marriage

Posted June 6, 2012 in Your Family & The Law by

By this time next year, we will have a national court ruling in favor of same-sex marriage. Two federal appeals courts have already ruled that the Defense of Marriage Act (DOMA) is unconstitutional, and the next stop is the U.S. Supreme Court, which will also have to throw out this discriminatory law.

Two federal appeals courts have granted a huge victory in favor of gays and lesbians by striking down the Defense of Marriage Act because it illegally targets gays and lesbians.

A relic of the 1990s “Don’t Ask, Don’t Tell” era, DOMA prevents 100,000 legally-married LGBT couples from filing a joint tax return, obtaining federal health benefits and even from being buried in veteran’s cemeteries. The federal government is no longer defending the anti-gay law in court and the President has said he supports same-sex marriage.

The U.S. Constitution — specifically the equal protection clause of the 14th Amendment — forbids laws that punish minority groups such as the LGBT community.


Times have changed

Six states have legalized same-sex marriage (CT, IA, NH, VT, NY and DC) with nine more granting LGBT couples marriage-like rights in civil unions or domestic partnerships. Together, those 15 states account for about 35 percent of the U.S. population. On the other hand, 32 states have rejected gay marriage at the polls, accounting for just over 60 percent of the population.

Click to listen to the interview by the Daily Wrap radio show from the Wall Street Journal

According to a new Washington Post-ABC News poll, 53 percent of those questioned say gay marriage should be legal, a new high for the poll, while 39 percent, a new low, say it should be illegal.

American courts have been striking down anti-gay marriage laws since before DOMA was enacted. As far back as 1993 the Hawaii Supreme Court ruled that denying marriage licenses to gays and lesbians might violate that state’s constitution.

DOMA will fail in the U.S. Supreme Court because there is no legitimate “compelling interest” to support it. The courts consider a compelling interest to be an invasion by a foreign power, or a major police issue such as widespread riots in the streets. Moral disapproval is not sufficient to uphold a discriminatory law. The legal arguments made by proponents of DOMA have been weak, involving obscure points based on the 10th Amendment, which governs relations between the state and federal government, and on the Constitution’s language about the government’s taxing and spending powers.

Of course the Supreme Court is dominated by conservative justices who may not sympathize with gay rights. However, the very nature of a conservative judge is to follow prior rulings, which for more than a century have guaranteed equal protection for everyone in the U.S. The Founding Fathers even stated in the Declaration of Independence that all men are created equal, and there is no stronger precedent than that.

A law that oppresses Americans based on their sexual orientation will not stand. The courts do not permit laws that target Americans based on their race, national origin or gender, and therefore the U.S. Supreme Court will not permit the Defense of Marriage Act to exist.


Legal Tips to Protect You and Your Partner

Find out more:

What You Need to Know About LGBT Marriage

Federal Same-Sex Marriage Is Coming

Demystifying the Law: Gay & Lesbian Rights

If you are in an LGBT relationship, don’t wait for DOMA to be struck down. The law is still in effect, pending a decision by the Supreme Court. Call a lawyer who can take the following steps to protect you and your partner:


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