The Supreme Court and Same-Sex Marriage (Part 2)

On March 26th and 27th, the U.S. Supreme Court will hear arguments on two cases involving same-sex marriage issues which will have far reaching repercussions for both the Supreme Court and American society.

As I explained in yesterday's column, "The Supreme Court and Same-Sex Marriage (Part 1)," on March 26th the Court will hear arguments on California's Proposition 8 (Hollingsworth v. Perry), and the next day (March 27th) the Court will review sections of the Federal Defense of Marriage Act (DOMA) in United States v. Windsor. These are two very different cases and are best analyzed separately. Yesterday's column dealt with Hollingsworth v. Perry, and today we turn our attention to United States v. Windsor.

Whereas the Proposition 8 case deals with the issue of whether the people of California's amendment to their state constitution defining marriage as being only between one man and one woman violates the U.S. Constitution, in United States v. Windsor the Supreme Court is seeking to adjudicate Section Three of the Defense of Marriage Act (DOMA). This bill passed Congress with an overwhelming bipartisan majority in 1996 and defines marriage as only between a man and a woman concerning eligibility or applicability of more than 1,000 federal laws, benefits, and programs that apply to marriage. The most well-known section of DOMA, which allows states not to recognize same-sex marriages performed in other states, is not under challenge in the Court in this case.

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United States v. Windsor concerns Edith Windsor, who married Thea Spyer in 2007 in Canada. When Ms. Spyer died in 2009 and Ms. Windsor inherited her property, DOMA precluded Ms. Winsor from being treated as a surviving spouse by the Internal Revenue Service. Consequently, she faced a tax bill of approximately $360,000 that would not have been due had the marriage been a heterosexual union. Ms. Winsor sued in federal court and won at the district and appellate level. Now, the Supreme Court has taken up the case on appeal from the appellate court.

Why did the Supreme Court agree to hear these two cases? What will their decisions be? Will the Court risk provoking the wrath of a sizable percentage of the public by seeking to take the marriage issue away from the people of the various states and seek to impose its definition of marriage on all fifty states? Will the Court further use the occasion to mandate that federal benefits accorded to heterosexual marriage must now all be applied to same-sex marriages performed in the states that legalize it?

Many people have damaged their reputations and some have depleted their bank accounts by trying to predict or bet on what a particular Supreme Court will do concerning any given decision. Remember the Supreme Court's unpredictable and surprising decision on the constitutionality of Obamacare?

Having acknowledged that the Court is always notoriously unpredictable, I am prepared to take the plunge and make a prediction. Given Chief Justice Robert's aversion to judicial activism, shared by a crucial number of his fellow justices, I believe the Supreme Court will take the path of least judicial activism and most judicial restraint. I believe they will uphold the more that 200 year old judicial tradition of letting the states regulate and define marriage within their borders and will uphold the people of California's ban on same-sex marriage. They have heard justice Ginsburg's concerns about Roe and do not want to be the cause of such social and political division on the issue of marriage. Further, they do not want the Court and its role to become the issue.

However, I believe they will, at the same time, take the opportunity of the United States v. Windsor case to decide that when a state has recognized same-sex marriage as legal within that state, such marriages deserve to be treated the same as heterosexual marriage under federal law for the purposes of applicability of federal marriage benefits. I believe this is precisely why they took the United States v. Windsor case at the same time they decided to take up Hollingsworth v. Perry.

I believe they are going to seek to thread the needle and split the difference. Such decision making by the Supreme Court would leave the issue of defining marriage within the borders of each state (such as California), but at the same time declaring that if a state (such as New York) defines same-sex marriage as marriage, the federal government (including the IRS) would defer to each particular state's definition of marriage when determining eligibility for benefits.

The end result would be that the Supreme Court would allow the same-sex marriage issue to continue to play out in the ebb and flow of the political process in the various states and keep the issue of marriage a "state" issue. And, since New York recognizes same-sex marriage, Ms. Winsor would get her estate taxes back, presumably with interest.

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