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Supreme Court will hear gay marriage cases

BY MICHAEL DOYLE AND STEVE ROTHAUS, srothaus@MiamiHerald.com

WASHINGTON -- The Supreme Court turned to same-sex marriage Friday in a big way, by agreeing to review a California ballot measure that banned it and a federal law that blocks benefits for married same-sex couples.

In an ambitious move, the justices agreed to second-guess a lower court’s decision striking down California’s Proposition 8. Simultaneously, they agreed to consider challenges to the federal Defense of Marriage Act, which blocks same-sex married couples from receiving a host of federal benefits.

The separate cases, to be heard next year, will thrust the often-divided high court into hot political territory and tricky constitutional terrain. 

 

"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."

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I am glad that the direct cases against OMB are going to be tried as well as Prop. 8.

Scalia/Thomas will never vote for equal rights. Kennedy lived in California all his life and knows gays should have rights. Roberts experienced different ladies so he's cool. The tree female Justices and Breyer are cool. Now with the remaining Justice who is himself a closet gay, it will be interesting. Remember former Senator Larry Craig fought to deny rights for gays, while all along he was a closet gay. RNC chairman Ken Mehlman had to stay silent from 2004-2008 about his being gay. Finally Ken came out in 2010. We see Law Makers that are closet gays while using marriage as a shield.

Scalia and Thomas may surprise. Contrary to popular liberal opinion they are not activist zealots. They are both constitutionalists who believe the federal government has usurped states' rights in too many areas. As marriage is not mentioned in the U.S. constitution I expect them both to nullify DOMA on 10th Amendment grounds.

@MarcV. I agree with you 100%. Anyone who pays attention to both Scalia and Thomas knows that these guys are not about to add prohibitions to the constitution, such as who should and should not marry. I predict a 7-2 vote in favor of letting the state decide and a 6-3 for gay marriage, with an unprecedented number of justices writing their own opinions. Gays have been discriminated for too long.

@MarcV, Yes Amendment 10 will be a sound argument for Scalia and Thomas, but only to allow states to make individual decisions on marriage. What they will (hopefully) consider is that Amendment 14 tells states that they have to abide to other state's rulings in legal affairs. (I.E. marriage). Which paves the way for finally ruling that all DOMA's across the country, including good 'ole Florida, are unconstitutional. Either way it goes, the opinions of the judges will make some interesting reading.

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