Kennedy looks at this as a state's right issue. And if this is a "states' rights issue,"
DOMA should be thrown out in an instant. What could be a broader federal "overreach" than telling states that laws they've passed through referenda or the legislative process regarding who people can marry are ignored by the federal government in favor of what it deems to be acceptable?
That said, there's a tremendous amount of misinformation out there on all sides (including in this very thread.) That isn't to say anyone is uneducated or ignorant but it's very complicated and technical. As someone very interested in politics and law, and this issue in particular, I'd like to clear a few things up though I'm far from a Constitutional scholar and anyone can feel free to correct anything that I write that is inaccurate or confusing. I'm also going to try to keep the wording relatively neutral so as best to convey the facts and not my (very strong!) opinions.
First things first: Edie Windsor, a New York resident, is an elderly woman who is suing the federal government because she claims DOMA denied her "equal protection under the law" guaranteed by the 14th Amendment. She lived with her partner Thea Spyer for 40 years before being legally married in Toronto in 2007. Spyer died in 2009 in New York, a state that recognized her marriage even before gay marriage became legal in New York because the state recognized legal marriages in other jurisdictions. Thus, under New York law, the women were married. Under federal law, legally married couples are entitled to an unlimited spousal deduction for federal inheritance taxes, meaning that they don't have to pay any taxes when their spouse dies. However, DOMA prevents the federal government from recognizing marriages between gay people, so Windsor had to pay $363,000 in taxes when her loved one died on any money over $3.5 million instead of the sum of $0 she would have paid if her partner was a man. (this fact is not in dispute.)
The Department of Justice and the Obama administration have determined for themselves that the law is unconstitutional, so the Bipartisan Legal Advocacy Group of the House of Representatives (BLAG) is defending the law on the government's behalf headed mainly by House Republicans. It gets very complicated in that the Department of Justice is listed as a defendant even though they agree with the plaintiff to ensure that the parties have appropriate standing since there is some debate on whether or not the BLAG would have standing to defend the law alone. Regardless, both the DOJ and BLAG are named defendants so a ruling dismissing the case on standing would be incredibly surprising (both sides agree on this)
DOMA first allows states to elect not to recognize gay marriages that legally took place in other states. (ie. if you're legally married in New York, Nevada can and does consider the marriage void if you move there.) The second component of DOMA prevents the federal government from recognizing any marriages between gay or lesbian couples for all federal laws or programs even if their state recognizes their marriage. (this is the so-called section 3 that's been all over the news) Only this second component - Section 3 - of the law is being challenged in the Windsor case because Edie Windsor was unaffected by the first provision and the way our legal system works, she would not have standing to challenge the other component since it wasn't an issue of another state not recognizing her marriage.
While it may seem that even if the Supreme Court sides with Windsor, the part allowing states to ignore legal marriages in other states would stand, that is not true as the Supreme Court through judicial review is allowed to consider the merits of the law in totality; Windsor's lawyers simply couldn't use it to frame their case.
Currently, section 3 of DOMA denies gay couples the following federal benefits of marriage (and I'm sure there are others):
1.) Social Security spousal benefits/spousal disability insurance and Social Security One Time Death benefits
2.) The ability to file federal taxes as a married couple, filing jointly, which allows for federal tax deductions
3.) 0% gift taxes on gifts between spouses: if a gay individual transfers, say, the title of their car to their spouse, the spouse is supposed to pay taxes on it (straight couples pay 0% tax)
4.) Numerous military benefits including emergency notification if one's spouse is injured or killed in combat, a one time $100,00 payment paid to surviving spouses of a soldier killed in combat, a military pension of 55% for spouses of soldiers serving 20 years or more, access to the military's healthcare system through their spouse in the military, benefits of the GI bill to fund education for spouses of soldiers killed or injured in combat, death benefits for veterans.
5.) Citizenship benefits including naturalization for a spouse who is lawful permanent resident but not a U.S. citizen, and immediate spousal visas that allow straight couples to obtain a visa for their spouse without restriction.
6.) Health insurance benefits for spouses of federal employees
7.) Hospital visitation rights for spouses
So, what happens if section 3 of DOMA is ruled unconstitutional? All those federal benefits would be granted to gay and lesbian couples who have a marriage legally recognized by the state they reside in. If the other component of DOMA is also found unconstitutional by the court (unlikely by most accounts because it isn't specifically an issue in the case before the court) states would be compelled to recognize marriages legally performed in other states, allowing just about anyone to go to New York or another state where gay marriage is legal and return to their home state and still receive all the benefits described above. It wouldn't be the same as a declaration that marriage is between any two consenting adults (first because gay couples would still need to travel some place to get married and because states would still be free to deny benefits states grant to married couples like adoption rights, state taxes, etc.)
Hopefully that all made sense! Let me know if I need to change anything or if anything is still unclear/you have other questions. Sorry for the novel but I'm sure as any of you who have dug into this know, it's quite a complicated matter.
The Proposition 8 is another matter entirely (and honestly even more complicated) and I can type something up in a little while if anyone is interested.
ETA: A friend just asked so I figured I'd state it explicitly here, there is almost no conceivable way that the Supreme Court would require gay marriage be legal everywhere in the United States through Windsor v. United States since even striking down DOMA in its entirety (as I explained above) wouldn't do that. The nationwide legalization of gay marriage could only be mandated by the court through Hollingsworth v. Perry - the so-called Proposition 8 case, also being decided tomorrow.
Scratch and claw for every day you're worth!
Make them drag you screaming from life, keep dreaming
You'll live forever here on earth.
Updated On: 6/25/13 at 08:17 PM
.jpg?format=auto&width=300)
