Supreme Court Hears Day 2 of Gay Marriage Debate

Constitutionality of Defense of Marriage Act at Stake

By Reuters

Published March 27, 2013.
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The DOMA case is about whether Edith Windsor, who was married to a woman, should get the federal estate tax deduction available to heterosexuals when their spouses pass away.

Windsor’s marriage to Thea Spyer was recognized under New York law, but not under DOMA. When Spyer died in 2009, Windsor was forced to pay federal estate tax because the federal government would not recognize her marriage. She later sued the government, seeking a $363,000 tax refund.

Windsor’s lawyers say the federal government has no role in defining marriage, which is traditionally left to the states.

Lower courts have ruled in her favor.

The roughly 133,000 gay couples nationwide, married in one of the nine states where it is legal, are not recognized as married by the federal government, Windsor’s supporters say.

Various groups are calling for DOMA to be struck down, such as the Business Coalition for DOMA Repeal, whose members include Marriott International Inc, Aetna Inc, eBay Inc , and Thomson Reuters Corp, the corporate parent of the Reuters news agency.

OBAMA TURNS BACK ON DOMA

The Obama administration has agreed with Windsor that the section of law that defines marriage violates the U.S. Constitution’s guarantee of equal protection under the law. The Justice Department has thus declined to defend the statute, as it normally would when a federal statute is challenged.

That has left a legal group acting on behalf of the Republican-dominated U.S. House of Representatives, known as the Bipartisan Legal Advisory Group, or BLAG, as the party defending the federal law. Its lawyer, Paul Clement, will argue that there are several reasons to support Congress’s decision to enact DOMA.

Noting the strong bipartisan support the law attracted when enacted, Clement said in court papers that a move to strike it down as unconstitutional “would be wholly unprecedented.”

Before the court reaches that bigger question, preliminary matters could prevent a decision. One is whether BLAG has legal standing. If such a procedural issue prevents the court from deciding the case on the merits, Windsor would win her refund.

Yet DOMA would stay on the books in states where courts have not ruled on it. Further litigation would likely ensue. (


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