View Photo Gallery — http://tiny.cc/n2jluw .. Historic moment for gay marriage at Supreme Court: Oral arguments in the legal battle to extend the right of marriage to same-sex couples — and to grant federal recognition of such unions — was difficult to imagine even a decade ago.
By Robert Barnes, Wednesday, March 27, 7:02 PM
The Supreme Court on Wednesday continues its examination of same-sex marriage, this time considering whether Congress may withhold federal benefits from legally wed gay couples by defining marriage as only between a man and a woman. The arguments will focus on a key section of the c. The Obama administration has said that it will not defend the law, and a string of lower courts has said that it is unconstitutional to deny federal benefits to same-sex couples who are legally married in the states where they live while offering them to opposite-sex married couples.
There are more than 1,000 references to marital status in federal law and regulations covering important federal benefits such as tax savings, Social Security payments, and medical and family leave.
Although Tuesday’s arguments on California’s Proposition 8 focused on those who want to marry, the DOMA case concerns those who are already married.
The plaintiff is Edith Windsor, who married Thea Spyer, her partner of more than 40 years, in Canada in 2007. When Spyer died in 2009, she left her estate to Windsor. Because their marriage was not recognized, Windsor paid a tax bill of more than $360,000.
She has sued for a refund. “It’s really unfair, unconstitutional and a violation of equal protection for the federal government for the first time in our nation’s history to have two classes of married couples,” said Roberta A. Kaplan, Windsor’s attorney.
The issue of marriage is traditionally one that states control. Nine states, including Maryland, and the District of Columbia allow same-sex marriages.
“DOMA does not bar or invalidate any state-law marriage but leaves states free to decide whether they will recognize same-sex marriages,” said the brief filed by the House Republican leadership, which is defending the law. “DOMA simply asserts the federal government’s right as a separate sovereign to provide its own definition for purposes of its own federal funding and programs.”
As in the Prop 8 case, the DOMA case has technical problems that the court must settle before it can get to the merits of the dispute.
California’s elected leadership said it would not defend Prop 8, and the Obama administration has taken the same position on DOMA. So the House’s Bipartisan Legal Advisory Group — bipartisan in name only, because the Democratic members of the committee also view DOMA as unconstitutional — is defending the law.
It hired Paul D. Clement, who was solicitor general in the George W. Bush administration, to handle the appeal.
The court appointed an outside lawyer — Harvard professor Vicki C. Jackson — to represent the view that the case was not properly before the court.
She said the House members have not suffered the kind of injury required to bring a case to the court, and both Windsor and the Obama administration essentially are on the same side. She advises the court to wait for another case that challenges DOMA.
Four district judges and two courts of appeals have declared DOMA’s Section 3 unconstitutional. Section 2, which says states do not have to recognize same-sex marriages performed elsewhere, is not part of the challenges.
The law was passed by overwhelming bipartisan congressional majorities and signed by President Bill Clinton back when same-sex marriage was purely hypothetical. Clinton recently wrote an op-ed in The Washington Post saying that the court should find the law unconstitutional.
As the state of play now stands, the law has been declared unconstitutional as applied to same-sex couples married in the Northeastern states covered by the U.S. Courts of Appeals for the 1st and 2nd circuits. But the decisions don’t apply to those married in Iowa, the District or those states that approved gay marriage in the fall.
The Obama administration has said that it will continue to enforce the law, however, until the Supreme Court rules.
About 15 percent of Americans live in states that allow gay marriage, and the number would double if the right were reinstated in California.
Central to the outcome is likely to be Justice Anthony M. Kennedy. Although he sides most often with the court’s conservatives in ideological splits, Kennedy has written the majority opinion in two of the court’s most important gay rights decisions.
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