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Published: Thursday, 3/28/2013

Justices lift hopes of gay-rights’ activists

Court may be ready to void law barring same-sex marriages

BY TRACIE MAURIELLO
BLOCK NEWS ALLIANCE
Edith Windsor of New York, arms outstretched, greets a sea of supporters outside the Supreme Court, which heard arguments on the Defense of Marriage Act. Edith Windsor of New York, arms outstretched, greets a sea of supporters outside the Supreme Court, which heard arguments on the Defense of Marriage Act.
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WASHINGTON — Gay-rights activists cheered boisterously on the steps of the U.S. Supreme Court on Wednesday as word trickled out that questions inside seemed to indicate a willingness to strike down a federal law that prevents the government from recognizing same-sex marriages.

Justices including Anthony Kennedy, a closely watched swing voter, noted the Defense of Marriage Act, or DOMA, intrudes on states’ rights to regulate marriages.

The law affects many federal benefits for married couples, including tax breaks, insurance for spouses of federal employees, Social Security payments, patient visitation rights and death notification, attorneys argued in the case brought by Edith Windsor, 83, of New York.

She claims the government violated the Constitution’s equal protection clause when it assessed her $363,000 in taxes on the estate she inherited from her deceased wife in New York, where same-sex marriage is legal. She would not have been billed had she been married to a man.

Trial and appellate courts in New York ruled against Ms. Windsor. The Obama Administration, which has become increasingly supportive of gay rights, enforced the tax rule but declined to defend DOMA in court. That prompted the Bipartisan Legal Advisory Group comprising five members of Congress to intervene in court.

The group’s intervention raises jurisdictional questions the court must address before it can rule on the substantive issue: whether the feds must treat same-sex marriages the same as traditional ones.

A similar technicality was raised in a separate case the court heard Tuesday. In that case — which dealt with the constitutionality of a California ban on gay marriage — justices indicated a wide range of options are being considered: dismissing the case, issuing a ruling applying only to California, and writing a sweeping opinion opening the doors to same-sex marriage nationwide.

Options in the Windsor case are more limited.

Justice Stephen Breyer summed them up: “There has been this uniform one-man, one-woman rule for several hundred years, and there’s a revolution going on in the states. We either adopt the revolution and push it along a little, or we stay out of it.”

Other justices wrestled with the fundamental question of whether the U.S. government or states should be the ultimate arbiters.

Liberal Justice Ruth Bader Ginsburg said the federal law is problematic. “If we are totally for the states’ decision that there is marriage between two people, for the federal government then to come in to say no joint [tax] return, no marital deduction, no Social Security benefits, your spouse is sick but you can’t get leave … one might as well ask ‘What kind of marriage is this?’ ”

She said federal benefits are intertwined in every aspect of married life. “It’s not that there’s this little federal sphere and it’s only a tax. It affects every area of life. It diminishes what states have said [and creates] two marriages: traditional marriage and this other thing.”

Justice Elena Kagan read from a House report indicating when Congress passed the 1996 law, it was trying to “reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.”

She asked Paul D. Clement, attorney for the Bipartisan Legal Advisory Group: “Do we think that Congress was doing this for uniformity reasons, or do we think that Congress’s judgment was infected by dislike, by fear, by animus?”

Mr. Clement said the court needs to look beyond that phrase to see lawmakers’ intent to provide statutory uniformity. He said the court shouldn’t strike down the law “just because a couple of legislators may have had an improper motive.”

Roberta K. Kaplan, who represents Ms. Windsor, said such moral disapproval was not driven by bigotry but lawmakers’ misunderstandings in a society that, in 1996, had misconceptions about gays. “Back in 1996, people did not have the understanding that they have today,” she argued. “It was based [on] … an incorrect understanding that gay couples were fundamentally different than straight couples, an understanding that I don’t think exists today.”

Ms. Windsor emerged from court to a sea of rainbow flags and supporters chanting, “Edie! Edie! Edie!” She stopped briefly to address a throng of reporters.

“I think [the arguments] went beautifully. I thought the justices were gentle,” she said. “They were direct, they asked all the right questions, and I didn’t feel any hostility or any sense of inferiority. I felt we were respected and I think [the outcome] is going to be good.”

She and Thea Spyer had been a couple more than 40 years. They wed in 2007 when they were in their mid-70s, and Ms. Spyer died two years later. Then the tax man called. “The federal government was treating us like strangers,” in assessing a tax she would have been exempt from if she had married a man.

The Block News Alliance consists of The Blade and the Pittsburgh Post-Gazette. Tracie Mauriello is a reporter for the Post-Gazette.

Contact Tracie Mauriello at: tmauriello@post-gazette.com, or 703-996-9292, or on Twitter @pgPoliTweets.



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