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Supreme Court will consider gay marriage cases

December 7, 2012 - Andrea Johnson
The U.S. Supreme Court is going to take a look at gay marriage, but it doesn't appear likely that it will legalize gay marriage nationwide this session. One of the cases involves an elderly New York woman who sued to challenge a $363,000 federal estate tax bill after her partner of 44 years died in 2009. Edith Windsor, 83, legally married Thea Spyer in 2007, two years before Spyer's death, but the Federal Defense of Marriage Act meant their marriage was not recognized at a federal level as it was at a state level. If Windsor had been married to a man, her tax would have been $0. The U.S. Circuit District Court of Appeals ruled that DOMA deprived Windsor of her right to equal protection under the law.

The second case the Supreme Court will look at is Proposition 8, California's constitutional ban on gay marriage. Gay marriage had been briefly legal in California before the ban was passed. The 9th U.S. Circuit Court of Appeals ruled that the ban deprived people of their right to marry since it had once been legal in the state.

If the Supreme Court rules in these cases it doesn't look like it would involve a ruling on whether DOMA itself is unconstitutional, just whether it is a violation of rights in states that already have legalized gay marriage.

Personally, I think DOMA is clearly a violation of the constitutional guarantee of equal protection and I would like to see it ruled unconstitutional nationwide instead of this drip-drip-drip approach. If the Supreme Court made such a sweeping judgement, conservatives would undoubtedly complain about "activist judges" but I think the decision would be the correct one. I wish the Supreme Court courage as well as wisdom in the upcoming session.

The cases will be argued in March and probably decided in June.


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