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U.S. Supreme Court to hear two big gay marriage cases: California's Prop 8, Defense of Marriage Act

The U.S. Supreme Court has agreed to hear two marriage equality cases in early 2013:

California's Proposition 8, which banned same-sex marriage in that state, and the so-called Windsor case, which challenges the constitutionality of the federal Defense of Marriage Act.

"DOMA is now going to be reviewed by the highest court of the land," said family law specialist Richard Milstein of Akerman Senterfitt in Miami. "This will [weaken] DOMA and give equality to same-sex couples and heterosexual couples."

Milstein said that if DOMA goes away, the federal government would then recognize all legal marriages, even in states such as Florida with constitutional bans against same-sex weddings.

"When DOMA falls, federal tax returns can be filed whether your state recognizes gay marriage or not," Milstein said. "It would also recognize survivor's Social Security benefits and other forms of survivor benefits and rights including the Family Leave Act and veterans benefits."

There are 1,138 benefits, rights and protections provided on the basis of marital status in federal law, according to Human Rights Campaign, the nation’s largest gay-rights group.

"All of those would be applicable to same-sex couples under a valid legal marriage," Milstein said. "It's my opinion that the state's legal standing against marriage equality will topple the same as it did in miscegeny laws."

Click here to read more about this evolving story.

Here's a news release from the ACLU about Windsor:

WASHINGTON – The U.S. Supreme Court today agreed to hear Edith “Edie” Windsor’s challenge to the constitutionality of the Defense of Marriage Act (DOMA).

Windsor, 83, was forced to pay more than $363,000 in federal estate taxes after the death of her spouse Thea Spyer, because their marriage was not recognized under federal law. If Spyer had married a man instead of a woman, no estate tax would have been owed.

“When Thea and I met nearly 50 years ago, we never could have dreamed that the story of our life together would be before the Supreme Court as an example of why gay married couples should be treated equally, and not like second-class citizens,” said Windsor, who sued the government for a refund after Spyer’s death in 2009. “While Thea is no longer alive, I know how proud she would have been to see this day. The truth is, I never expected any less from my country.”

Windsor is represented by attorneys from Paul, Weiss, Rifkind, Wharton & Garrison LLP; the American Civil Liberties Union; the New York Civil Liberties Union and the Stanford Law School Supreme Court Litigation Clinic.

Windsor, who achieved the highest technical rank as a software programmer at IBM, and Spyer, a clinical psychologist, met in the 1960s and lived together for more than four decades in New York City. They were engaged in 1967, despite there being no foreseeable prospect of them being able to marry at the time. In 1977, Spyer was diagnosed with progressive multiple sclerosis, and Windsor helped her through her long battle with that disease, which eventually resulted in Spyer’s paralysis. The couple was finally legally married in 2007.

"The four decades that Edie Windsor spent with her late spouse are a testament to the words ‘in sickness and in health, till death do us part,’” said James Esseks, director of the ACLU Lesbian Gay Bisexual and Transgender Project. “After building their lives together and getting married, it is unfair for the federal government to treat them as though they were legal strangers.”

In October, the U.S. Court of Appeals for the Second Circuit, held that Section 3 of DOMA was unconstitutional as applied to Windsor. The court held that laws like DOMA that subject lesbians and gay men to unequal treatment are presumed to be unconstitutional and are legal only if the government can point to an “important interest” that justifies the discrimination. A federal district court had previously held in Windsor’s case that DOMA was unconstitutional even under a less rigorous constitutional standard.

“As the two lower courts have now concluded, it was unconstitutional for our client to have to pay a $363,000 tax bill upon her spouse’s death simply because she was married to a woman, instead of a man” said Roberta Kaplan of Paul, Weiss.

The Supreme Court also agreed to hear a constitutional challenge to California’s Proposition 8, which relates to the right of same-sex couples to marry in the State of California.

“While New York and eight other states now give same-sex couples the freedom to marry, DOMA requires otherwise legally married same-sex couples like Edie and Thea to be treated by the federal government as if they had never married,” said New York Civil Liberties Union executive director, Donna Lieberman.  “It is time for the Supreme Court to strike down this unconstitutional statute once and for all.”

More about this case can be found at www.aclu.org/edie

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