Sunday, June 23, 2013

Prop 8 & DOMA in Plain English



Here’s a good review the DOMA and Prop 8 cases, and possible outcomes, written by Amy Howe for Scotus Blog Decisions are likely this week in both cases…

And it has all come down to this.  Over four years ago, superlawyers Ted Olson and David Boies – who opposed each other in the Bush v. Gore presidential election case – came together to challenge California’s ban on same-sex marriage on behalf of two California couples.  In the next few days, the Supreme Court is finally expected to rule on whether that ban (known as Proposition 8) and the federal Defense of Marriage Act – which limits marriage to a union between a man and a woman for purposes of federal law – are constitutional.  But then again, it might not . . . .  So let’s talk about the same-sex marriage cases and what the Court could do with them in Plain English.

Let’s start with United States v. Windsor, the challenge to the Defense of Marriage Act (DOMA), which may wind up as the less complicated of the two.  (More background on the case can be found in my earlier posts here, here, and here.)  And let’s be clear on what this case is not about:  it is not about whether there is a constitutional right to same-sex marriage.  Instead, it is about whether Congress can treat married same-sex couples differently from married opposite-sex couples in federal laws and programs like Social Security benefits, immigration, and income taxes. 


Congress passed DOMA in 1996, and then-President Bill Clinton signed it into law.  The Clinton, Bush, and Obama administrations all defended DOMA against court challenges.  But in 2011, President Obama changed his mind and concluded that DOMA violated the rights of same-sex couples, so House Republicans stepped in to defend the law.

The challenge to the constitutionality of DOMA now before the Justices was filed by an octogenarian from New York, Edith (“Edie”) Windsor, who in 2007 married Thea Spyer, her partner of over four decades, in Canada.  When Spyer died a few years ago, Windsor inherited her entire estate, but the estate also came with a federal estate tax bill of nearly four hundred thousand dollars that Windsor would not have had to pay if she had been married to a man.  Windsor prevailed in the lower courts, which agreed that the law was unconstitutional.  And with the United States now taking her side in the legal fight, the Supreme Court granted review last winter.

Read More HERE

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