U.S. Supreme Court takes gay marriage issue head on
Ms. Eddie Windsor married Thea Spyer in 2007 after doctors told them that Spyer would not live much longer. In her will, Spyer left everything to her “wife,” Ms. Windsor. Their 2007 marriage is now recognized by the state of New York. There is no dispute that if Windsor had been married to a man, her estate tax bill would have been $0. The 2nd U.S. Circuit Court of Appeals in New York agreed with a district judge that the provision of Federal DOMA deprived Windsor of the constitutional guarantee of equal protection especially as it related to U.S. tax laws.
In an ironic twist to the twp cases, the Obama administration, who is supposed to defend DOMA, is presenting oral arguments that DOMA is indeed unconstitutional and should be struck down. Arguing in defense of the legitimacy of the law (in the Windsor case), are attorneys for Bi-partisan Legal Advisory Group, headed by Speaker John Boehner (R-OH) and the House Republican leadership. BLAG has directed the House General Counsel to defend all DOMA cases in the Federal Court System. The group has hired outside counsel.
The Court may agree to hear arguments as to whether or not the BLAG has legal standing before the court. If the court rules that BLAG doesn’t have legal standing, the lower 2nd Court of Appeals ruling would stand. Most court watchers think this circuitous route to overturning DOMA is unlikely. It is believed that the court chose Windsor vs. United States so that Justice Kagan would not have to recues herself and would be available to advert a possible 4 – 4 tie vote.
In agreeing to hear the California Prop 8 cases, the Justices have signaled their willingness to address the constitutional questions as to whether or not states have the constitutional right to define marriage as only being between one man and one woman. This is a clear challenge to the thirty seven states who have constitutional amendments or laws banning gay marriage. A decision in favor of gay marriage could set a national rule. It would overturn every state constitutional provision and laws banning same-sex marriages, including Georgia. The Court’s decision is expecting in June 2013. Gay marriage could possibly be legal in Georgia in the next seven months!