Supreme Court Considers DOMA Today

Yesterday's oral arguments in Hollingsworth v. Perry left many, myself included feeling somewhat depressed as it became obvious that a broad sweeping ruling that would bring equality to backward, bigoted states like Virginia was not going to be forthcoming.  Hopefully, today's oral arguments in United States v. Perry will be more satisfying although once again there is the issue of whether or not the GOP group bringing the appeal has standing.  One would hope that with a theoretical split between the federal circuit courts of appeals because the 1st and 2nd Circuits have ruled DOMA unconstitutional while others have not yet handed down rulings, the Supreme Court will act to strike down DOMA.  A piece in the Washington Post looks at today's Court doings.  Here are highlights:

The Supreme Court on Wednesday continues its examination of same-sex marriage, this time considering whether Congress may withhold federal benefits from legally wed gay couples by defining marriage as only between a man and a woman. The arguments will focus on a key section of the Act. The Obama administration has said that it will not defend the law, and a string of lower courts has said that it is unconstitutional to deny federal benefits to same-sex couples who are legally married in the states where they live while offering them to opposite-sex married couples.

There are more than 1,000 references to marital status in federal law and regulations covering important federal benefits such as tax savings, Social Security payments, and medical and family leave.

When Spyer died in 2009, she left her estate to Windsor. Because their marriage was not recognized, Windsor paid a tax bill of more than $360,000.  She has sued for a refund. “It’s really unfair, unconstitutional and a violation of equal protection for the federal government for the first time in our nation’s history to have two classes of married couples,” said Roberta A. Kaplan, Windsor’s attorney.

California’s elected leadership said it would not defend Prop 8, and the Obama administration has taken the same position on DOMA. So the House’s Bipartisan Legal Advisory Group — bipartisan in name only, because the Democratic members of the committee also view DOMA as unconstitutional — is defending the law.

The court appointed an outside lawyer — Harvard professor Vicki C. Jackson — to represent the view that the case was not properly before the court.  She said the House members have not suffered the kind of injury required to bring a case to the court, and both Windsor and the Obama administration essentially are on the same side. She advises the court to wait for another case that challenges DOMA.

Four district judges and two courts of appeals have declared DOMA’s Section 3 unconstitutional. 

As the state of play now stands, the law has been declared unconstitutional as applied to same-sex couples married in the Northeastern states covered by the U.S. Courts of Appeals for the 1st and 2nd circuits. But the decisions don’t apply to those married in Iowa, the District or those states that approved gay marriage in the fall.

Central to the outcome is likely to be Justice Anthony M. Kennedy. Although he sides most often with the court’s conservatives in ideological splits, Kennedy has written the majority opinion in two of the court’s most important gay rights decisions.

Let's hope that DOMA, which was motivated by nothing but religious based anti-gay animus as the legislative record indicates, meets the death that it deserves.