Marriage equality supporters march in New York on Sunday ahead of the US supreme court arguments. Photograph: Emmanuel Dunand/AFP/Getty Images

From the Guardian:

On Tuesday, the justices will hear arguments over California’s ban on same-sex marriage after a 2008 referendum, Proposition 8, overturned a state supreme court decision in favour of gay unions, and amended the state constitution to say that “only marriage between a man and a woman is valid or recognized in California”.

The following day, the court will consider whether a 1996 law passed by Congress blocking the federal government from recognising same-sex marriages, the Defense of Marriage Act (Doma), is constitutional.
That case has pitted the Obama administration against the Republican leadership in Congress. The White House said two years ago it would no longer defend Doma, which denies married gay couples – including members of the military – tax, financial and welfare benefits available to heterosexuals.

Congressional Republicans hired a lawyer – Paul Clement, the former US solicitor general who argued and lost the case against Barack Obama’s healthcare reforms — to defend Doma. But one of the first things the justices have to decide is whether Congress has the authority, known as “standing”, to even bring the case to the supreme court after the US Justice Department decided not to challenge an appeal court ruling striking down Doma as unconstitutional.

The challenge to Doma was brought by Edith Windsor, who was married to Thea Spyer in Canada in 2007. The couple lived in New York, where their marriage was recognised by the state government.

But when Spyer died in 2009, the federal government invoked Doma to force Windsor, who is now 83 and in poor health, to pay $363,000 in taxes on her late wife’s estate – a charge she would have been exempt from if she had been married to a man.

Windsor’s lawyer, Roberta Kaplan, will tell the supreme court she is not seeking to establish a right for same-sex couples to marry but to oblige the federal government to recognise those marriages in states that permit them.

From The Hill:

President Obama’s administration said Friday that the Defense of Marriage Act (DOMA) was unconstitutional, filing a brief weeks ahead of scheduled arguments before the Supreme Court.
In its brief, the Justice Department said that DOMA, which defined marriage as only between a man and a woman, “violates the fundamental constitutional guarantee of equal protection.”

“The law denies to tens of thousands of same-sex couples who are legally married under state law an array of important federal benefits that are available to legally married opposite-sex couples,” the brief added.

Obama has already ordered his administration not to defend DOMA, and announced he supported same-sex marriage during the heat of last year’s presidential campaign.

The Supreme Court will hear arguments next month on the case of Edith Windsor, who was forced to pay taxes on the estate of her deceased partner, Thea Spyer.

The couple had married in Canada, and their marriage was recognized in their home state of New York at the time Spyer died in 2009. But Windsor was forced to pay hundreds of thousands of dollars in estate taxes that would not have been required if her deceased spouse had been a man.

From NYLJ:

The U.S. Supreme Court will take up California’s ban on same-sex marriage, a case that could give the justices the chance to rule on whether gays have the same constitutional right to marry as heterosexuals.

The justices said today they will review a federal appeals court ruling that struck down the state’s gay marriage ban, though on narrow grounds. The San Francisco-based appeals court said the state could not take away the same-sex marriage right that had been granted by California’s Supreme Court.

The court also will decide whether Congress can deprive legally married gay couples of federal benefits otherwise available to married people in a case from the U.S. Court of Appeals for the Second Circuit. A provision of the federal Defense of Marriage Act limits a range of health and pension benefits, as well as favorable tax treatment, to heterosexual couples.

The cases are likely to be argued in March, with decisions expected by late June.

From NYT:

The United States Court of Appeals for the Second Circuit is the second federal appeals court to reject a central portion of the federal law, the Defense of Marriage Act, following the United States Court of Appeals for the First Circuit, in Boston, which handed down its ruling in May.

But this decision on Thursday is the first time that an appeals court has subjected the law to a relatively tough test for constitutionality that, in effect, elevates issues of sexual orientation to the constitutional level of cases involving sexual discrimination.

The Supreme Court may take up the issue as soon as the current term.

Two of the three judges on the Manhattan court ruled in favor of Edith Windsor, an 83-year-old woman whose case challenged the 1996 statute, saying it violated the Constitution’s equal-protection clause because it recognizes the marriages of heterosexual couples but not those of same-sex couples, even though New York State law makes no such distinction.

Mrs. Windsor, who filed the lawsuit in November 2010, married her longtime partner, Thea Spyer, in Canada in 2007. The two had been together for 44 years.

Though the marriage was recognized in New York, when Mrs. Spyer died in 2009, Mrs. Windsor was not able to claim a deduction for a federal estate tax that is available for the surviving partner of a marriage between heterosexuals. Mrs. Windsor, who had been the sole beneficiary of Mrs. Spyer’s estate, was forced to pay $363,053 in estate taxes. When she requested a refund, the Internal Revenue Service rejected her claim, citing federal marriage law.

Judge Dennis Jacobs, who wrote the majority opinion, said the federal law was “not related to an important government interest,” concluding that “homosexuals are not in a position to adequately protect themselves from the discriminatory wishes of the majoritarian public.”

From WashingtonPost:

The Supreme Court begins a new term Monday with the most important civil rights agenda in years on the horizon and amid intensified scrutiny of the relationship between Chief Justice John G. Roberts Jr. and his fellow conservatives.

…

The justices will consider the continued viability of affirmative action in college admissions when it hears a challenge next week to the University of Texas’s race-conscious selection process.

And there are several challenges awaiting the court’s action on the most controversial part of the Voting Rights Act — the Civil Rights-era requirement that some states with a history of racial discrimination receive federal approval before enacting voting or election-law changes.

The court seems all but certain to confront the issue of same-sex marriage by considering suits against the 1996 federal Defense of Marriage Act. The law’s provision denying federal recognition of same-sex marriages performed in states where they are legal has been deemed unconstitutional both by the Obama administration and lower courts that have considered it.

In addition, the court will be asked to review a decision that overturned California’s Proposition 8, in which voters amended the state constitution to define marriage as between a man and a woman.

From Metro Weekly:

[T]he U.S. District Court for the Northern District of California issued its order finding that Section 3 of the Defense of Marriage Act — the federal definition of marriage — is unconstitutional in Golinski v. Office of Personnel Management, Karen Golinski’s challenge to the denial of her request for equal health insurance benefits for her wife.

Golinski, a federal court employee, brought suit after her request was denied. She is represented by Lambda Legal Defense and Education Fund. Because President Obama and the Department of Justice have stopped defending Section 3 of DOMA in court challenges, the Bipartisan Legal Advisory Group — led by House Republican leadership — had opposed Golinski’s request in court.

[U.S. District Court Judge Jeffrey S. White today found]:

The Court has found that DOMA unconstitutionally discriminates against same-sex married couples. Even though animus is clearly present in its legislative history, the Court, having examined that history, the arguments made in its support, and the effects of the law, is persuaded that something short of animus may have motivated DOMA’s passage: Prejudice, we are beginning to understand, rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves. Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 374-75 (2001) (Kennedy, J., concurring). [...] In this matter, the Court finds that DOMA, as applied to Ms. Golinski, violates her right to equal protection of the law under the Fifth Amendment to the United States Constitution by, without substantial justification or rational basis, refusing to recognize her lawful marriage to prevent provision of health insurance coverage to her spouse. Accordingly, the Court issues a permanent injunction enjoining defendants, and those acting at their direction or on their behalf, from interfering with the enrollment of Ms. Golinski’s wife in her family health benefits plan.

See also:

• Servicemembers File Complaint Challenging Constitutionality of DOMA
• DOMA Unconstitutional
• Pelosi: Democratic Party Should Come Out For Full Marriage Equality

From Constitutional Law Prof Blog:

DOMA – - – the Defense of Marriage Act – - – already suffering from legislative efforts at repeal and seriously questionable constitutional status, including the Obama DOJ’s decision not to defend its constitutionality, has been challenged again.

In a Complaint filed [yesterday], the Servicemembers Legal Defense Network representing several plaintiffs, challenged the constitutionality of DOMA in conjunction with several other statutes that govern benefits for military servicemembers. The Complaint was filed in the United States District Court for the District of Massachusetts, the same district in which Judge Tauro found DOMA unconstitutional in companion cases in July 2010.

(h/t: Ruthann Robson)

DOJ: Court Should Not Dismiss Karen Golinski’s Health Benefits Claim, Should Instead Find DOMA Unconstitutional

The Dept. of Justice argues that DOMA fails intermediate scrutiny, thereby making it unconstitutional under the Equal Protection Clause of the 5th and 14th Amendments. In evaluating whether such statutes are unconstitutional, the Supreme Court developed three levels of scrutiny: strict scrutiny, intermediate or heightened scrutiny, and rational review.

The Supreme Court has held that immutable characteristics such as race and gender warrant heightened scrutiny of statutes that discriminate against a suspect class of people. Statutes that discriminate on the basis of race warrant strict scrutiny (the highest level of scrutiny). Statutes fail strict scrutiny if they are not narrowly tailored to serve a compelling governmental interest and there is no less restrictive means to accomplish the purpose of the statute.

The Supreme Court has ruled that statutes that discriminate on the basis of gender warrant heightened or intermediate scrutiny, but not strict scrutiny. Statutes fail the intermediate scrutiny test if they are not substantially related to the governmental interest the statute claims it furthers. In order for a law to survive the rational basis test, it must simply show that it is rationally related to any governmental interest.

The DOJ has moved from the position of passively not defending DOMA to affirmatively arguing against it, asking the Court to find it unconstitutional on the basis that it fails intermediate scrutiny — which is to say that the DOJ is affirmatively stating that sexual orientation is an immutable characteristic.

However, as the Supreme Court has also held that marriage is a fundamental right, which also triggers a strict scrutiny analysis, an argument can be made that strict scrutiny should be applied. While both race and gender are immutable characteristics, they do not warrant the same level of scrutiny according the Supreme Court.

According to the Court, race is not only considered immutable, but also considered discrete and insular, whereas gender is not insular because women comprise half of the population. As such, from a legal vantage point, an argument could be made that sexual orientation is not only immutable, but also discrete and insular, thereby triggering a strict scrutiny analysis.

Nevertheless, the DOJ’s position is historic insofar as they are affirmatively arguing that gays and lesbians are a suspect class with immutable characteristics, warranting a heightened scrutiny analysis when the object of discrimination. No previous DOJ or administration has taken such an affirmative stance.

From Metroweekly:

[T]he Department of Justice filed a brief in federal court employee Karen Golinski’s federal court challenge, supporting her lawsuit seeking access to equal health benefits for her wife and arguing strongly that the Defense of Marriage Act is unconstitutional in terms unparalleled in previous administration statements.

In a brief filed on behalf of the Office of Personnel Management and other federal defendants, DOJ acknowledged the U.S. government’s “significant and regrettable role” in discrimination in America against gays and lesbians.

[...]

Unlike in other cases where DOJ has stopped defending DOMA in accordance with President Obama and Attorney General Eric Holder’s decision that Section 3 of DOMA — the federal definition of marriage — is unconstitutional, DOJ lawyers today made an expansive case in a 31-page filing that DOMA is unconstitutional. Previously, the government had attached the Feb. 23 letter from Holder to House Speaker John Boehner (R) that announced the DOJ position to filings to courts about the decision to stop defending the law, but it had not laid out any more expansive reasoning.

• DOJ’s Opposition to the BLAG Motion to Dismiss
• Golinski’s Motion for Summary Judgment