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Supreme Court to hear same-sex marriage cases

By Robert Barnes,December 07, 2012

(Page 2 of 2)

He based the ruling on the Supreme Court’s 1996 decision in Romer v. Evans, which involved an amendment to the Colorado constitution that prohibited the state or local jurisdictions from outlawing discrimination against gays. The amendment was a response to local governments that had extended such protection.

Reinhardt’s decision, if allowed to stand, would apply only to same-sex marriages in California.

The court was in a tricky legal area in deciding what to do about DOMA. The Obama administration normally would defend a law passed by Congress but would prefer that this one be found unconstitutional. The Republican leadership in the House has hired Paul D. Clement, the former solicitor general who argued the challenges to the Affordable Care Act earlier this year, to defend DOMA.

From several possibilities, the court chose the case of Edith “Edie” Windsor, 83, who is represented by the American Civil Liberties Union.

Windsor had to pay $363,000 in estate taxes after her partner of 44 years died in 2009. Windsor and Thea Spyer were married in 2007 in Canada and lived in New York. If Windsor had been married to a man, she would not have owed the tax payment.

The U.S. Court of Appeals for the 2nd Circuit said that deprived Windsor of her constitutional right to equal protection. It also said the law should be subjected to a legal standard called “heightened scrutiny” because it unfairly discriminated against gay men and lesbians, the first time a court had made such a finding.

Central to the outcome of the term’s signature cases will be Justice Anthony M. Kennedy, who normally sides with the court’s conservatives but has written some of the court’s most important cases upholding gay rights. For instance, he wrote the Romer decision that the 9th Circuit used as the template for overturning Prop 8.

But some gay rights activists have worried about asking Kennedy and the court to move too far too quickly on what would be a sea change in the way Americans view marriage.

On the one hand, public opinion has changed dramatically: Two-thirds of younger Americans supported same-sex marriage in the most recent Washington Post-ABC News poll. Maryland, Washington and Maine became the first states to approve gay marriage at the polls last month. They join Connecticut, Iowa, Massachusetts, New Hampshire, New York, Vermont and the District, where same-sex marriage was approved either legislatively or by courts.

On the other hand, same-sex marriages are not allowed elsewhere in the country. In May, North Carolina became the most recent to approve a constitutional ban. Two-thirds of older Americans disapprove of the unions.

While the House Republicans defending DOMA declined to comment on Friday’s action, Edie Windsor released a statement that reflected on a changing nation.

“When Thea and I met nearly 50 years ago, we never could have dreamed that the story of our life together would be before the Supreme Court as an example of why gay married couples should be treated equally, and not like
second-class citizens,” Windsor said.

“While Thea is no longer alive, I know how proud she would have been to see this day. The truth is, I never expected any less from my country.”

The Proposition 8 case is Hollingsworth v. Perry , and the DOMA case is United States v. Windsor .

Scott Clement and Jerry Markon contributed to this report.

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