November 30, 2012

Supreme Court may consider constitutionality of gay marriage

There was no announcement about the court's plans on Friday, but they could announce their intentions Monday.

The Associated Press

(Continued from page 1)

click image to enlarge

This Oct. 18, 2012 file photo shows Edith Windsor interviewed at the offices of the New York Civil Liberties Union, in New York. The fight over gay marriage is shifting from the ballot box to the Supreme Court. Three weeks after voters in three states backed it, the justices meet Friday to decide whether they should deal sooner rather than later with the idea that the Constitution gives people the right to marry regardless of a couple's sexual orientation. (AP Photo/Richard Drew, File)

Yet some opponents of gay marriage say the issue is too important, and California is too large a state, for the court to take a pass.

"The question is whether there's a civil right to redefine marriage, as the California Supreme Court did. We don't think there is," said Brian Brown, president of the National Organization for Marriage.

Regardless of the decision on hearing the California case, there is widespread agreement that the justices will agree to take up a challenge to a part of the federal Defense of Marriage Act.

The law was passed in 1996 by overwhelming bipartisan majorities in the House and Senate and signed by President Bill Clinton. It defines marriage for all purposes under federal law as between a man and a woman and has been used to justify excluding gay couples from a wide range of benefits that are available to heterosexual couples.

Four federal district courts and two courts of appeal have overturned the provision in various cases on grounds that it unfairly deprives same-sex couples of federal benefits. The justices almost always will hear a case in which a federal law has been struck down.

The Obama administration broke with its predecessors when it announced last year that it no longer would defend the provision. President Barack Obama went further when he endorsed gay marriage in May.

Republicans in the House of Representatives stepped in to take up the defense of the law in court.

Paul Clement, the Washington lawyer representing the House, said the law was intended to make sure that federal benefits would be allocated uniformly, no matter where people live.

"DOMA does not bar or invalidate any state-law marriage, but leaves states free to decide whether they will recognize same-sex marriage," Clement said in court papers.

The court has several cases to choose from, including that of 83-year-old Edith Windsor of New York. Windsor faces $363,000 in federal estate taxes after the death of her partner of 44 years in 2009. In two other cases, same-sex couples and surviving spouses of gay marriages in Connecticut, Massachusetts, New Hampshire and Vermont are seeking a range of federal benefits, including Social Security and private pension survivor payments, access to federal employee health insurance and the right to file a joint federal income tax return.

In the only instance in which a gay couple already is receiving federal benefits, federal court employee Karen Golinski in San Francisco has been allowed, under a court order, to add her wife to her health insurance coverage. That could be reversed if the Supreme Court upholds the marriage law provision.

No matter which case the court chooses, the same issue will be front and center — whether legally married gay Americans can be kept from the range of benefits that are otherwise extended to married couples.

Justice Elena Kagan strongly suggested in her Supreme Court confirmation hearings that she would not take part in a gay marriage case from Massachusetts because she worked on it while at the Justice Department. The Massachusetts case is one of only two cases that have been decided by a federal appeals court. Windsor's is the other.

Another case, from Arizona, has some similarities to the Defense of Marriage Act appeals. The 9th U.S. Circuit Court of Appeals, which invalidated Proposition 8 in California, struck down a state law that said only married state employees were eligible for health benefits and withdrew domestic partner benefits for unmarried state workers. Separately, the Arizona constitution bars same-sex marriage, so gay couples had no way to obtain the state benefits.

Were you interviewed for this story? If so, please fill out our accuracy form

Send question/comment to the editors




Further Discussion

Here at PressHerald.com we value our readers and are committed to growing our community by encouraging you to add to the discussion. To ensure conscientious dialogue we have implemented a strict no-bullying policy. To participate, you must follow our Terms of Use.

Questions about the article? Add them below and we’ll try to answer them or do a follow-up post as soon as we can. Technical problems? Email them to us with an exact description of the problem. Make sure to include:
  • Type of computer or mobile device your are using
  • Exact operating system and browser you are viewing the site on (TIP: You can easily determine your operating system here.)