Supreme Court considers same-sex marriage

Marty Dolan, principal at Dolan Law, and his associate, Karen Munoz, represent victims of wrongful death and personal injury. His column “Law and Wellness” appears in Chicago Lawyer magazine and her column appears regularly in the Chicago Daily Law Bulletin. This week’s blog is written by Karen Munoz

The U.S. Supreme Court agreed on Friday to take its first serious look at the issue of gay marriage. The Court granted a review of the California’s ban on same-sex marriage. The Court will also review the Defense of Marriage Act (110 Stat. 2419 (1996)) which defines marriage as only the legal union of a man and woman. As it currently stands, nine states allow same-sex partners to marry (or soon will) and 41 states do not allow such unions. Of those 41 states, 30 have written gay marriage bans into their state constitutions.

By looking at the question of gay marriage, the court will at least decide if the federal government can refuse to recognize the validity of a same-sex couple lawfully married in their state. The court may also look at whether states must permit marriages by gay people in the first place. The California case involves a challenge to Proposition 8. Proposition 8 was a constitutional amendment passed in 2008 by 52 percent of voters which banned same-sex marriage after 18,000 same-sex couples were legally married in the same year. A federal judge declared the ban unconstitutional and a federal court of appeals upheld that ruling.

The Supreme Court has several options in reviewing the decision of the California court. It could reverse it, leaving the California ban on same-sex marriage in place. It could affirm it on the narrower theory, which would allow same-sex marriage in California but not require it elsewhere. Or it could address the broader question of whether the constitution requires states to allow such marriages.

The Supreme Court will also review the Clinton-era Defense of Marriage Act which specifies that, for federal purposes, the word ‘marriage’ means only a legal union between one and one woman as husband and wife. The Defense of Marriage Act was passed in 1996 in reaction to a state court decision in Hawaii which held that the state could not deny marriage licenses to same-sex couples. There was a concern at the time that this rule would force other states to recognize gay marriage. But Hawaii never adopted same-sex marriage.

The action is being brought by a New York woman, Edith Windsor, who married her wife in Canada in 2007. Windsor’s wife died and Windsor was faced with a tax bill of $360,000 for inheriting her wife’s estate. A spouse in an opposite-sex marriage would not have to pay such a tax. In February 2011, Attorney General Eric H. Holder Jr. announced that he and President Barack Obama concluded that the law was unconstitutional and would no longer defend it in court but would continue to enforce it.

The two cases are likely to be argued in late March, with decisions expected by June.


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