Supreme Court Could Strike Down Defense of Marriage Act

Posted March 27, 2013 in Gay and Lesbian issues by

The U.S. Supreme Court heard two hours of arguments today over the Defense of Marriage Act, which bans federal recognition of same-sex marriage.

Opponents of the 1996 law argue that excluding gay couples from federal marriage benefits is unconstitutional under the Fifth Amendment, which states that the federal government must not deprive people of “life, liberty, or property” while implying equality under the law.

DOMA was ruled unconstitutional twice last year, first in a decision rendered by the 1st U.S. Circuit Court of Appeals, followed by a 2nd Circuit ruling less than six months later. The Supreme Court took up the 2nd Circuit case, Windsor v. United States, in which 83-year-old Edith Windsor sued over $363,000 in estate taxes she had to pay while inheriting her wife’s assets. Had they been a straight couple, with a marriage recognized by the federal government, she would have paid nothing.

Tax perks are but one benefit that gay couples are excluded from, thanks to DOMA. “Married same-sex couples are currently denied social security that different-sex spouses receive when one member of the couple dies,” says Suzanne B. Goldberg, co-director for the Center for Gender and Sexuality Law at the Columbia Law School. “They are also denied estate tax exemptions, . . . veterans benefits, the ability to sponsor their partners for immigration purposes, and much more.”

Professor Suzanne B. Goldberg headshot

Suzanne B. Goldberg

If DOMA is thrown out by the court on Fifth Amendment or other grounds, any couple who can legally get married in a state that allows same-sex marriage could be eligible for the federal benefits. Currently, nine states plus Washington, D.C., allow LGBT marriage.

The Obama administration has declined to defend the Defense of Marriage Act; instead, Congressional Republicans created a group to try to convince courts to uphold the law.

The DOMA arguments today follow yesterday’s hearing on Hollingsworth v. Perry, in which the court will consider the constitutionality of state gay marriage bans.


What Makes a Marriage?

The arguments today opened with back and forth on jurisdictional technicalities, but eventually got to the meat of the issue. “What gives the Federal Government the right to be concerned at all at what the definition of marriage is?” Justice Sonia Sotomayor asked.

Her colleagues joined her skepticism. “The problem is if we are totally for the States’ decision that there is a marriage between  two people, for the Federal Government then to come in to say no joint return, no marital deduction, no Social Security benefits; your spouse is very sick but you can’t get leave; people -­ if that set of attributes, one might well ask, what kind of marriage is this?” Justice Ruth Bader Ginsburg asked.

LGBT: the New Civil Rights Movement logoJustice Anthony Kennedy, again serving as a potential swing vote, wondered about the law’s interference with state and personal interests. DOMA affects over 1,100 federal laws, he noted, “which in our society means that the Federal Government is intertwined with the citizens’ day-to-day life, you are at — at real risk of running in conflict with what has always been thought to be the essence of the State police power, which is to regulate marriage, divorce, custody.”

Later in the arguments Chief Justice John Roberts expressed doubt over whether anti-gay laws should face a heightened scrutiny from courts because of traditional discrimination, noting the effectiveness of equality proponents in bringing LGBT marriage to nine states.

“As far as I can tell, political figures are falling over themselves to endorse your side of the case,” Roberts said, referring to the number of high profile current and former officials who have expressed their support of equality in recent months.

The court’s decisions in the Windsor and Perry cases, to be released sometime later this term, could be landmark cases that bring equal marriage rights to all Americans, or they could skirt any sweeping issues and land with a dull thud that doesn’t resolve anything. Edith Windsor and millions of others are waiting for an answer.

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