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.
The Obama administration on Thursday urged the Supreme Court to rule in the case of California’s Proposition 8 that same-sex marriage should be required in eight more states, beyond the nine that already permit it, although it stopped short of explicitly calling for the Justices to extend the right to the entire nation.
The historic document, though, could give the Court a way to advance gay marriage rights, without going the full step — now being advocated by two California couples who have been challenging Proposition 8 since 2009 — of declaring that marriage should be open to all same-sex couples as a constitutional requirement.
Administration sources said that President Obama was involved directly in the government’s choice of whether to enter the case at all, and then in fashioning the argument that it should make. Having previously endorsed the general idea that same-sex individuals should be allowed to marry the person they love, the President was said to have felt an obligation to have his government take part in the fundamental test of marital rights that is posed by the Proposition 8 case. The President could take the opportunity to speak to the nation on the marriage question soon.
In essence, the position of the federal government would simultaneously give some support to marriage equality while showing some respect for the rights of states to regulate that institution. What the brief endorsed is what has been called the “eight-state solution” — that is, if a state already recognizes for same-sex couples all the privileges and benefits that married couples have (as in the eight states that do so through “civil unions”) those states must go the final step and allow those couples to get married. The argument is that it violates the Constitution’s guarantee of legal equality when both same-sex and opposite-sex couples are entitled to the same marital benefits, but only the opposite-sex couples can get married.
From the Washington Blade:
The Obama administration will take part in the lawsuit challenging California’s Proposition 8 by filing a friend-of-the-court brief before the Supreme Court, according to a report on Thursday by NBC News’ Pete Williams,
The report comes on the deadline day for submitting friend-of-the-court briefs in favor of the same-sex couples challenging Prop 8 in the lawsuit filed by the American Foundation for Equal Rights.
LGBT advocates have been pushing for the Obama administration to take part in the Prop 8 lawsuit amid uncertainty over whether the court will decide to uphold the same-sex marriage ban or strike it down.
Rick Jacobs, co-founder of the Courage Campaign, issued a statement commending President Obama for “standing-up for millions of Californians who simply want to marry the person they love.”
“The two Supreme Court cases this summer will be a watershed moment for equality and President Obama has put his Administration squarely on the right side of history,” Jacobs said. “Discrimination and hatred have no place in a country founded on the principles of liberty, justice and equality.”
The Justice Department has already taken part in the case against the Defense of Marriage Act before the Supreme Court. Just last week, the Obama administration filed a brief contesting DOMA on the basis that laws related to sexual orientation should be subjected to heightened scrutiny.
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.
There were hints in Mr. Obama’s speech of potential fault lines in the debate. He declared, for example, that there must be a path to citizenship for illegal immigrants “from the outset.” That would seem at odds with the assertion by some senators that citizenship must be tied to tighter border security.
Although Mr. Obama did not say it in his speech, the White House is also proposing that the United States treat same-sex couples the same as other families, meaning that people would be able to use their relationship as a basis to obtain a visa.
Mr. Obama offered a familiar list of proposals: tightening security on borders, cracking down on employers who hire undocumented workers and temporarily issuing more visas to clear the huge backlog of people applying for legal status in the country.
His speech, on the heels of the bipartisan Senate proposal, sets the terms for one of the year’s landmark legislative debates. These are only the opening steps in a complicated dance, and the effort could still founder, as did the effort to overhaul immigration laws in the George W. Bush administration.
But the flurry of activity underscores the powerful new momentum behind an overhaul of the immigration system, after an election that dramatized the vulnerability of Republicans on the issue, with Mr. Obama piling up lopsided majorities over Mitt Romney among Hispanic voters.
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.
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.”