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Justices to soon decide whether to take-up same-sex marriage appeals

Edith "Edie" Windsor

WASHINGTON (CNN) – The divisive issue of same-sex marriage was expected to be discussed privately by the Supreme Court Monday, and the justices could soon announce if they will hear a constitutional challenge to a federal law denying financial benefits to gay and lesbian couples.

An order from the court announcing whether they will take up either or both of two separate issues could come as early as Tuesday morning. If so, oral arguments and an eventual ruling would not happen until next year, but the current appeals are sure to re-ignite the hot-button social debate in a presidential election.

At issue is whether guarantees of “equal protection” in the U.S. Constitution should invalidate a California law – and the separate 1996 Defense of Marriage Act (DOMA), which for federal purposes defines marriage as the legal union only between one man and one woman.

A New York woman sued, saying the congressional law unfairly treats same-sex couples who are lawfully married under the laws of their own states.

A separate appeal from California over the state’s voter-approved Proposition 8 banning same-sex marriage is also before the high court.

In the DOMA appeal, Edith “Edie” Windsor and Thea Spyer had lived for together in New York City’s Greenwich Village for more than four decades, and had been engaged as a couple since 1967.

They eventually married out of state in 2007, but neither the federal government nor their home state of New York at the time recognized the legal union. Spyer died three years ago and left her estate to Windsor, who was then forced to pay federal taxes on the money – about $363,000 in taxes – because she was not considered a legal spouse.

New York now allows same-sex marriage.

A federal judge had ruled in favor of Windsor, but citing her age and health, the woman’s lawyers are trying to bypass usual federal appeals court review of the case, and have asked the Supreme Court to hear the case now. Such legal leapfrogging is rarely accepted by the justices, since they typically want such cases to percolate through the entire judicial system before reaching the high court.

“Edie Windsor, who recently celebrated her 83rd birthday, suffers from a serious heart condition,” said Roberta Kaplan, Windsor’s attorney. “Edie cannot yet receive a refund of the unconstitutional estate tax that she was forced to pay simply for being gay. The constitutional injury inflicted on Edie should be remedied within her lifetime.”

The Defense of Marriage Act was passed in 1996 by the GOP-controlled Congress and signed into law by President Bill Clinton. It bars federal recognition of same-sex marriages and says states cannot be forced to recognize such marriages allowed in other states.

The Obama administration, which normally would defend federal laws in judicial disputes, announced earlier this year it believed the Defense of Marriage Act, often referred to as DOMA, to be unconstitutional.

House Speaker John Boehner said that with the Justice Department not participating, the Republican majority had “no choice” but to act unilaterally, and have moved to lead the legal defense of the law.

Three other separate appeals challenging DOMA have been filed with the high court, but have not yet been scheduled for an initial, internal review. Plaintiffs include 17 married or widowed men and women suing for federal benefits.

The justices may wait until all pending same-sex marriages have been debated in their closed-door conference before deciding whether any or all of the cases are accepted for full review.

A separate federal appeals court based in Boston last spring struck as unconstitutional a key part of DOMA, ruling the federal government cannot deny tax, health and pension benefits to same-sex couples in states where they can legally marry. That ruling was a boost for gay rights advocates and the Obama administration, which in a rare move, has refused to defend the federal law in court.

Marriage between two males or two females is legal in the District of Columbia and six states — Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, New York.

Washington state and Maryland passed similar laws that will not take effect until voters decide in separate referendums in the November elections.

Many other states, including New Jersey, Illinois, Delaware, Rhode Island and Hawaii, have legalized domestic partnerships and civil unions for such couples – a step designed in most cases to provide the same rights of marriage under state law.

But other states have passed laws or state constitutional amendments banning such marriages.

A bill known as the Respect for Marriage Act is working its way through Congress and would repeal DOMA. President Barack Obama, who previously opposed same-sex marriage, said in June he now supports it.

The larger issue has been working along two legal tracks, originating on opposite coasts.

A federal appeals court last February ruled against California‘s voter-approved ban on same-sex marriage, arguing the ban unconstitutionally singles out gays and lesbians for discrimination.

In a split decision, a three-judge panel of the 9th U.S. Circuit Court of Appeals found the state’s Proposition 8 “works a meaningful harm to gays and lesbians” by denying their right to civil marriage in violation of the 14th Amendment.

The “Prop 8” case, as it has become known, has been down a complicated legal road. California‘s Supreme Court ruled that same-sex marriages were legal in 2008. About 18,000 gay and lesbian couples then legally obtained marriage licenses in the state. But after the statewide ballot measure banning the practice passed with 52% of the vote later that year, same-sex marriages were put on hold.

California is the only state that accepted, then revoked, same-sex marriage as a legal right.

The somewhat narrow federal appeals court ruling tossing out Proposition 8 never reached the right-to-marry question – but instead ruled only on whether voters can decide such issues.

The Supreme Court has complete discretion to frame the same-sex marriage issues as the justices see fit. The court could determine whether a fundamental right is at stake, potentially striking down the laws of some states allowing only “traditional” marriages.

Or the justices could take a more narrow approach, and require the states to recognize same-sex marriages created in other states, without exception, without being forced to change their own laws.

It is unclear whether the first high court debate over same-sex marriage would be over federal, not state, laws – or whether both questions will be addressed at the same time.

The justices would have ultimate discretion to accept one, both, or neither of the cases — perhaps deferring judicial review until a later time, after other lower courts have had time to debate the matter. Or they may wait until Congress has had a chance to repeal or modify the current federal law.


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Posted by on Sep 24, 2012. Filed under Online Only, Top Highlights. You can follow any responses to this entry through the RSS 2.0. You can leave a response or trackback to this entry

4 Comments for “Justices to soon decide whether to take-up same-sex marriage appeals”

  1. Theo McKinney-Ewing


    America’s Anti-gay marriage advocates need to remember that SINGLE people are the MORE EXPENSIVE citizens as far as healthcare and household maintenance is concerned:

    Couples are quicker to discover illnesses and catch them sooner, saving $$$$ when it comes to avoiding ER visits. If a single is walking alone on a street late at night, they are more expensive to protect with police services; most couples are less likely to be attacked than most singles, walking alone (of course!)

    The additional assistance given couples tax-wise makes perfect sense. It’s the LEAST a government can do for people who are helping the community by SOLEMNLY supporting a percentage of its citizens’ daily welfare, so government resources can be diverted to other causes.

    A convalescing member of a supported couple can do so at home with a guaranteed caretaker at no cost or lesser cost to the community. A convalescing single clearly requires caretaking that will invariably be paid for at a higher cost to the community.

    Committed couples support their communities by taking less out, and contributing a stronger, more secure household as a valuable community building block.

    Marriage discrimination isn’t only unconstitutional, it’s just plain silly, as far as any responsible government goal should ever be concerned.

    Sheesh. Compared with empty-headed “laws” created to disenfranchise Gay citizens and ONLY Gay citizens?

    “Equality and Justice for all” is just SO much wiser as a governing goal…as well as GODLY FOR REAL.

    History will bear this out.

  2. Theo McKinney-Ewing


    If Woman A, has been living in a committed household with her soul mate Woman B for 30 years, Antigays claim Woman A has no constitutional right to marry her soul mate.

    Simply because Woman A does not have a penis.

    Antigays insist that no other requirement is necessary for her to exercise her constitutional right to marry the law-abiding partner of her choice but to have a penis that she does not posess, nor want.

    Nor can Woman B marry woman A, even though they are in a committed love relationship of many more years than most str8 “marriages”.

    Enter Man C, just out of prison for battering a second wife: he may exercise his constitutional right to marry Woman A, OR Woman B, and divorce and marry the other as often as he’d like, if given the chance.

    Unlike the marriage rights of Woman A & B, which Antigays seem intent on trampling, Man C’s marriage rights remain 100% intact, because he is heterosexual, and he presumably has a penis.

    For this and no other reason, he may exercise the precise civil right, that Woman A is being denied. Because he has a penis, and she does not.

    That, is illegal discrimination 101: it is not surviving federal court scrutiny now, and cannot ever be expected to survive any legal scrutiny under oath, in a court of law, no matter how much “chikin” you’re willing to stand in line and wait for.

    Summer of Love 2013 – CA’s fail marriage ban along with DOMA’s federal implosions (stricken a 5th time just this week!) both will ensure that all 32 Antigay marriage dominoes WILL fall in America.

    And America will become “more American”, for it.

    PRETTY SIMPLE STUFF (unless you are an antigay with a grudge you can never seem to coherently explain to anyone anywhere at any time…then…tough break, being on the wrong side of history…)

  3. The article is incorrect in paragraph 23, where it says that California‘s voter-approved ban on same-gender marriage was ruled unconstitutional “last month.” That happened in February 2012, not August 2012 (http://www.marriageequality.org/current-status-map).

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