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Supreme Court takes up gay marriage: what the justices have to decide

The main question before the Supreme Court is not whether the Constitution protects gay marriage, but whether Prop. 8 and DOMA discriminate in violation of the 14th Amendment.

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On appeal, a panel of the Ninth US Circuit Court of Appeals ruled 2 to 1 against Prop. 8. But rather than declaring whether the US Constitution protects a right to gay marriage, the appeals court instead said the state-wide ballot initiative violated the rights of gay and lesbian couples by taking away their opportunity to marry after it had been granted by the State Supreme Court.

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The federal appeals court said the referendum was designed to punish same-sex couples because of their homosexuality and thus violated their constitutional right to be treated in the same say as heterosexual couples.

In addition to the California Prop. 8 case, the US Supreme Court justices agreed to examine a challenge by an elderly woman in New York City to the constitutionality of DOMA.

DOMA bars same-sex married spouses from receiving the same federal benefits that are readily available to heterosexual married couples. There are more than 1,100 such benefits, including spousal coverage on health insurance plans, social security survivor payments, and the ability to file a joint federal tax return.

The suit, filed on behalf of Edith Windsor, charges that Congress had no valid reason to deny equal federal benefits to similarly situated same-sex spouses whose marriages are just as legal and recognized as male-female marriages in same-sex marriage states.

Specifically at issue in her case is a $363,000 tax bill the federal government says she owes in estate taxes following the death of her life-long partner, Thea Spyer.

If the married couple had been a man and a woman, the government would have honored the usual spousal waiver. But since both spouses were women, DOMA required that Ms. Windsor be treated as if she was single and had never been married.

Among reasons offered to justify DOMA: to create an incentive for responsible procreation and child-rearing within a marriage, to uphold the traditional definition of marriage and its meaning in a variety of other federal laws, to foster uniform eligibility for federal benefits regardless of shifting state marriage laws, and to conserve federal funds. 

Government lawyers successfully defended the statute during the Bush administration, but in 2011, President Obama and Attorney General Eric Holder decided that the law was unconstitutional. They announced that the administration would continue to enforce DOMA’s provisions (by denying benefits to same-sex married couples), but would refrain from defending DOMA’s constitutionality in court.

The defense of DOMA was taken over by a group of Republican lawmakers in Congress. Although Democrats refused to participate, the group retained its name: the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives.

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