The U.S. Supreme Court is hearing arguments Wednesday for a case challenging the constitutionality of the part of the Defense of Marriage Act that defines marriage as the union of one man and one woman for federal laws.
In the case, United States vs. Windsor, Edith Windsor sued the federal government, claiming that DOMA violated her constitutional guarantee to equal protection under the law. Windsor married her same-sex partner, Thea Spyer, in Canada. When Spyer passed away, she left her estate to Windsor, who then had to pay $363,000 in federal estate taxes. She would not have had to pay those taxes if the federal government recognized her marriage.
Since President Barack Obama will no longer defend DOMA in court, the law will be defended by the Bipartisan Legal Advisory Group, which was appointed by the House of Representatives. It will argue that no right to marriage for same-sex couples can be found in the Constitution.
DOMA easily passed in both houses of Congress in 1996 and was signed by President Bill Clinton. (Clinton recently changed his mind and no longer supports DOMA.) There are two parts to DOMA. The first says that states that do not allow same-sex couples to wed are not obligated to recognize same-sex marriages from other states. The second defines marriage as the union of one man and one woman for the purposes of federal law, but does not impose that requirement on the states. The Court is only hearing a challenge to the second part of DOMA.
Even though the federal government does not issue marriage licenses, there are over 1,000 federal laws that take marriage into account. For example, Social Security provides survivor benefits to spouses of deceased beneficiaries.
On Tuesday, the Court heard arguments in another case involving gay marriage. After hearing those arguments, court experts had difficulty seeing how five justices could come to a decision, and many are predicting a narrowly written decision or no decision. That could be the case for Windsor as well. The justices will also hear arguments on whether the case can be brought before the court in the first place.