Supreme Court Makes Us Wait for DOMA and Prop 8

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Thousands of California same-sex couples and countless other people (like myself), who are affected daily by the unconstitutional federal Defense of Marriage Act (DOMA), are waiting anxiously to hear whether or not the Supreme Court will hear gay marriage-related cases this term.

For the fifth consecutive week (since the start of this Supreme Court term), neither DOMA nor Proposition 8 has appeared on the list of cases the Supreme Court will not consider this term. In other words, the waiting continues, likely until after the presidential election this November, before we learn whether or not the nation’s highest court will hear some of the most highly publicized cases in decades.

Before the Supreme Court sit extremely important decisions that will affect gay couples nationwide. At this unique point in history, gay marriage legislation is being tackled from all directions: State level to Federal level and East coast to West coast. First, we have California’s Proposition 8 case, officially known as Hollingsworth v. Perry, where a federal appeals court ruled that California’s voter approved ban on gay marriage was unconstitutional because it denies gays the right to civil marriage in violation of the 14th amendment. If the justices turn down the appeal brought by the sponsors of Prop 8, gay marriage will again be legal in California. (Hooray!) If the court agrees to review the case at all, it will likely wait until after reviewing the controversial Defense of Marriage Act cases (more on that soon). Although the Prop 8 case only affects California, some say that the Court could use the ruling to require every state to offer same-sex marriage to its citizens, which, needless to say, would be huge. Gay marriage is currently only legal in six states plus the District of Columbia.

Next we have the 16-year-old Defense of Marriage Act (DOMA). This is, hands down, the worst piece of legislation ever signed into law by a democratic president. (Bill Clinton has since said that he regrets his signature.) Obama agrees that it sucks and in February 2011 ordered the Justice Department to stop defending it in court. Instead the “Bipartisan Legal Advisory Group” (BLAG) of the U.S. House of Representatives has intervened in attempts to uphold DOMA. Under necessary scrutiny is DOMA’s “Section 3” which defines marriage for all federal purposes as “only a legal union between one man and one woman as husband and wife.” This section denies same-sex couples — even those who are legally married in their states of residence — benefits available to straight married couples, including social security, health insurance, joint tax filing and deductions, family medical leave, disability, retirement and death benefits, immigration sponsorship and more.

There are currently five DOMA-challenging cases awaiting word from the Supreme Court, all where lower courts have found DOMA’s Section 3 unconstitutional. First, Windsor v. the United States is the most popular case, particularly because on Thursday, a Federal Appeals Court in New York ruled DOMA unconstitutional making it the second federal court to do so in the past six months. The case is that of Edie Windsor, whose spouse, Thea Spyer, died in 2009. The couple resided in New York, which at the time recognized same-sex marriages performed in other jurisdictions. (Edie and Thea were married in Canada.) When Thea died, Edie was required by the federal government, which did not recognize their marriage, to pay more than $363,000 in estate tax on her inheritance. If they were a straight couple, she would not have had to pay any tax at all.

Editor’s Note: For a more in-depth look at Edie and Thea’s relationship and to see Edie’s firecracker personality in action, check out the documentary Edie and Thea: A Very Long Engagement. It’s a touching (and tear-jerking) look at these remarkable women and their life together.

Then there are three cases brought against the federal government’s Human Resources office, or the Office of Personnel Management. They are Gil v. Office of Personnel Management and Pederson v. Office of Personnel Management, both brought by the Gay and Lesbian Advocates and Defenders (GLAD), and Golinski v. Office of Personnel Management, a San Francisco-based case brought by LAMBDA Legal. A similar case, Massachusetts v. U.S. Department of Health and Human Services, has been lumped with Gil in an appeal, as decisions in both cases were made by the same judge on the same day. In these cases, the plaintiffs argue that the Federal government is denying them the protections and benefits that would be available to them if their legal spouses were of the opposite sex. For example, they should be able to file joint tax returns and same-sex spouses of federal employees should receive equal benefits.

It isn’t yet clear if the Supreme Court will hear the Prop 8 case and/or none, one or all of the DOMA cases, (or if they will be lumped into one big DOMA case). Regardless, it is more likely that the Court will hear something DOMA-related than the Prop 8 case. Mainly this is because while the Court may see the California case as closed, with the state’s own appeals court ruling good enough, the Justices almost always review cases where an appeals court has ruled an act of Congress unconstitutional. And let’s face it; DOMA is unconstitutional on so many levels. As several appeals courts have found, it is in violation of equal protection guarantees. And on the conservative right, we have the obvious disconnect between federal and states’ rights. For more than 200 years — until DOMA was passed by Congress in 1996 — the power to define and regulate marriage was left to the states. And we know how conservatives love arguing for states’ rights. It seems like a no-brainer that DOMA should be shot down.

But what do I know? While I don’t claim to be a legal expert, I do happen to be one of the victims of DOMA. When my partner and I had our baby girl seven months ago, the right decision for our family was for me to stay home to take care of her. Because DOMA prohibits my partner from adding me to her health insurance family plan, I now pay several hundred dollars out of pocket each month in premiums. Needless to say, I’m eagerly awaiting a Supreme Court decision on this one. But even if the Court decides to accept a DOMA case, the first available date on the Court’s calendar isn’t until January. Worse yet, the Supreme Court usually doesn’t decide its most controversial cases (such as DOMA) until the end of a term — so it looks like I’ll continue to pay those premiums until at least next June. Until then, all we can do is hope those Justices make us proud.

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