Supreme Court will consider two marriage cases

by Anthony Glassman

Washington, D.C.--The United States Supreme Court ended months of �will-they-won�t-they� wondering by announcing on December 7 that the justices will hear challenges to the federal Defense of Marriage Act and California�s Proposition 8.

The court will hear whether Section 3 of DOMA, which defines marriage and spouse as being between one man and one woman for federal purposes, is constitutional. At stake are federal tax, pension, health and other benefits enjoyed by married opposite-sex couples which are currently denied to legally married same-sex couples. While their marriages are legal in the state where they were married, the national government does not recognize them.

DOMA has been declared unconstitutional by four trial and two appellate courts, and the Obama administration�s Justice Department refuses to defend Section 3 in legal challenges. The president and Attorney General Eric Holder agree that that part of the law is unconstitutional.

Defense of the section was picked up by House Speaker John Boehner of Cincinnati, under the auspices of the Republican-dominated House Bipartisan Legal Advisory Group.

The court will specifically examine Edith Windsor�s suit. Windsor and her wife Thea Spyer married in 2007, two years before Spyer died. The New York couple had been together for over four decades.

Windsor received a federal tax bill on Spyer�s estate of over $350,000. If a husband left his wife a comparable estate, there would be no federal tax. The Second Circuit Court of Appeals upheld a district court ruling that DOMA violated the equal protection clause of the U.S. Constitution.

In California, the state�s high court ruled in favor of same-sex marriage, which were then performed for half a year in 2008 before voters passed Prop. 8, barring same-sex marriage. Courts found that, because the right to marry had been granted, it was a violation of equal protection clauses because there was no �rational basis� to rescind marriage for same-sex couples.

In both instances, the Supreme Court could rule in favor of same-sex marriage without legalizing it nationally.

Striking Section 3 of DOMA would not affect Section 2, which allows states to refuse recognition of same-sex marriages performed in other states or countries. (Section 1 names the act.)

In the California case, the court could rule that same-sex couples in that state have a right to marry because it had already been granted.

The high court could also dismiss both cases on procedural bases. It asked parties in the suits to address the issue of standing, whether the defendants were legally allowed to defend the laws in court. That is especially an issue in the California case, where the governor and the state attorney general have refused to defend the amendment, leaving it to the people who originally put Proposition 8 on the ballot to defend it in court.

Pro-gay advocates have repeated argued that those supporters do not have legal standing to defend it.

If the Supreme Court rules that the proponents do not have standing, the original California ruling would have force of law, since neither the governor nor attorney general appealed it.� Marriage would once again be legal in California. Otherwise, the Supreme Court would take up examining the merits of the case.

In the worst-case scenario, the court could rule that the parties all have standing and uphold either Prop. 8 or DOMA, or both of them.

There are other DOMA cases, as well as an Arizona case arguing against the denial of domestic partner benefits to state employees, that could have been taken up by the court. However, the court neither took these up nor officially rejected them.

The Supreme Court will hear arguments in March and will likely rule on the two cases by the end of June.

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