Equality in America: Ding, Dong, DOMA’s Dead? Maybe…

gay couplesBill Clinton Doma

While the debate inside the High Court continues, things heated up outside the court and across the nation. Of course no event would be complete without the Westboro Baptist Church. The Supreme Court is considering the constitutional challenge to the Federal Defense of Marriage Act on Wednesday and the debate has drawn protestors for the second day in a row even members of the fringe anti-gay Westboro Baptist Church who flanked two couples with their offensive, homophobic signs but kudos to couples for not letting their hate filled rants effect their public display of affection. Bravo! The U.S. Supreme Court heard arguments today on whether Congress can withhold federal benefits from legally wed gay couples by defining marriage as a man and woman. Even former President Bill Clinton has called for the Supreme Court to overturn the law he signed as he believes that the Defense of Marriage Act is incompatible with the Constitution according to the Associated Press. He signed the law in 1996 to avoid legislation that would have been worse. In a Washington Post op-ed, Clinton writes society has changed and realizes that the law discriminates against gays and provides an excuse for other to do so too. The Obama administration stopped defending it as well as the Supreme Court will be the final say on what happens to the bill as well as California’s ban on gay marriage.

As the tensions rise outside the High Court, the U.S. Supreme Court justices on Wednesday morning questioned the constitutionality of the Defense of Marriage Act (DOMA), which defines marriage as between a man and woman. and whether the decision is really up to them or not. This is the second day the High Court heard arguments with the main issue on Wednesday dealing with the United States v. Windsor and whether it was constitutional for the government not to recognize same sex marriages that have been recognized by the states. Justice Antohony Kennedy said Tuesday that children of same sex coupes “want their parents to have full recognition and legal status” had a hard time accepting that DOMA refuses to recognize those same sex unions recognized by the state according to Huff Post. Kennedy believes that DOMA does cause injury to these couples whose marriages are not recognized by the federal government but the state. Seciton 3 of DOMA, at issue on Wednesday reports Huff Post states “the word marriage means only a legal union between a man and woman as husband and wife” for the purpose of “any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States.”

The Plaintiff, Edie Windsor, 83, brought suit against the federal government after the IRS cited DOMA to deny her a refund for the $363,000 in federal estate taxes paid following the death of Thea Spyer in 2009 who was her partner for 40 years reports Huff Post. Windsor and Spyer married in 2007 in Canada and lived in New York. Windsor argues that she would have been eligible for the estate tax exemption had Spyer been a man therefore DOMA’s Section 3 violates her equal protection rights under the Fifth Amendment. Two of the justices, Ruth Bader Ginsburg and Kennedy, seem to side with Windsor with Ginsburg stating that DOMA creates two types of marriages likening same sex marriage to the skim milk version of straight marriage while Kennedy struggled to determine whether or not the federal government can regulate marriage. Solicitor Genral Donald Verrilli, representing the Obama administration ont he merits of the case chose to emphasize COngress’ discriminatory purposes in 1996 stating the law “is not called Federal Uniform Definition of Marriage Act. It’s called the Defense of Marriage Act.” Justice Elena Kegan shared simliar sentiments as she told Clement, defending DOMA on behalf of the House of Representatives’ Bipartisan Legal Advisory Group, “that maybe Congress had something different in mind than uniformity” in the definition of marriage reading from the House Report which said DOMA was a reflection of Congress’ “collective moral judgment and to express moral disapproval of homosexuality.”

Therefore, the key to this case may lie in whether the law singles out gays and lesbians through “heightened scrutiny” where a measure singles out politically disfavored and less powerful groups. Chief Justice Roberts along this line focused on the change in public opinion regarding gay marriage and how it happened unless gay and lesbian Americans had significant political power as it seems politicians are falling over themselves to support it. The main question on his mind was why did President Barack Obama enforce it for so long if he thought it was unconstitutional. Clement commented that 10 years from now the nine states don’t have gay marriage will be force by federal government to recognize these unions. According to Huff Post, after Wednesday’s oral arguments the case may be about whether or not the justices have the power to hear the case at all. In United States v. Windsor, the U.S. District Court and the U.S. Court of Appeals for the 2nd Circuit declared DOMA unconstitutional while the Obama administration agree Roberts asked Deputy Solicitor General Sri Srinivasan, arguing for the Obama administration, whether there was any cases where all parties agreed with the decision below, but the court upheld its ability to hear it. Clement on Wednesday faced some serious questioned from the Supreme Court’s liberal wing on why the House had any legal interest in represent the position that has been abandoned by everyone involved with DOMA especially the executive branch. As Justice Stephen Breyer commented, ” How is this case any different from enforcing general powers of the United States.” The fight will continue as so many things remain uncertain.

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