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Thursday, March 28, 2013


This has been a big week for oral arguments in the US Supreme Court.  First California's Prop 8 and then The Defense of Marriage Act ("DOMA").  Both gay marriage cases.  In Utah this week there was a rally about the issue where Utah Governor Herbert stated he was in favor of traditional marriage, that between a man and a woman.  

I think the Gov, missed the reality of the issue in Utah. Traditional marriage in Utah includes that between a man and a woman and a woman and a woman and a woman, some of whom are not even 15 yeras old.  Other traditional marriage in Utah is that between a man and a sheep.

What is this all about. Section 3 of  DOMA (the 1996 Defense of Marriage Act) forbids the federal government from recognizing state-level same-sex marriages.  So currently, if a state, such as New York, allows same sex marriage, the federal government will not recognize that a legally same sex couple as married for federal purposes.  In oral argument about DOMA this week, there was an interesting interchange between one Supreme Court Justice and the lawyer representing the side that wants to keep DOMA:


Supreme Court Justice Elena Kagan caught the attorney defending the Defense of Marriage Act in a rare “gotcha” moment — in the eyes of many in the audience — at the high court on Wednesday.

In discussing the origins of the law, Paul Clement, who represents the Bipartisan Legal Advisory Group, said that Congress’s key interest in passing DOMA was preserving the uniform treatment of couples in various states at a time when there where indications that some states might allow same-sex marriages.

“All these federal statutes were passed with the traditional definition of marriage in mind,” Clement said. “What Congress says is, ‘Let’s take a time out. This is a redefinition of an age-old tradition.’”

But Kagan fired back in her questioning, telling Clement that Congress wasn’t preserving tradition, but departing from it when it jumped into the marriage issue. “The only uniformity that the federal government has pursued is that it’s uniformly recognized the marriages that are recognized by the state,” she said. Congress’ foray into the issue in 1996 was so unusual that it “sen[t] up a pretty good red flag,” she said.

A short time later, Kagan read aloud from the House Judiciary Committee report on DOMA. “Congress decided to reflect and honor of collective moral judgment and to express moral disapproval of homosexuality,” she said, quoting the report.

 “Is that what happened in 1996?” she asked to gasps, “oohs” and some laughter from many in the gallery who seemed to think she’d managed a rare Supreme Court “gotcha” moment.

Clement said he was not claiming moral disapproval constituted a sufficient basis for the law. “The House report says those things,” he said. But, he added, “we’ve never invoked [the language] in trying to defend the statute.”

It is surprising that congress would include language in a bill that "we are adopting DOMA because of our moral disapproval of homosexuality." Could they adopt legislation banning the Mormon religion because we morally disapprove of it? Could they refuse to recognize state law that permits public nudity on certain beaches because they morally disapprove of it?  You can go on and on on this issue. I think its a slippery slope when legislation is predicated on moral disapproval.  Lets face it, we all don't have the same morals. We don't all have the same core beliefs. If everyone had my core belief's Rush Limbaugh would be living in Iran and I would be a king.

By and large the republican party seems to support the notion that the federal government ought to stay out of issues that the states ought to regulate.  So if a state recognizes same sex marriage, you would think that states rights advocates would be supportive of state action and would be opposed to federal action superceding such action.  But I suppose the reality of it is that people advocate for state rights unless they don't like what the state does?

The case argued before the Supreme Court this week concerns two New York City women, Edith Windsor and Thea Clara Spyer, who legally married in Canada in 2007. Ms. Spyer died in 2009, and Ms. Windsor inherited her property.  Under US estate tax law, a spouse can leave his or her estate to his or her surviving spouse and take advantage of a "marital deduction", eliminating federal estate tax on the assets transferred to the surviving spouse.  The marital deduction is a key component of married couples' estate planning.

The 1996 law did not allow the Internal Revenue Service to treat Ms. Windsor as a surviving spouse, and she faced an estate tax bill of about $360,000.  If Ms. Spyer had been a man there would have been no estate tax. Ms. Windsor sued, and in October the United States Court of Appeals for the Second Circuit, in New York, struct down the 1996 law.       

This case has it all, moral disapproval, states rights and equal protection under the law. It will be interesting to hear the decision of the US Supreme Court when it comes out this summer.

For me, I say let people choose who they want to marry.

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