Supreme Court discusses the rights of same-gender couples

Today, the Supreme Court hears arguments on a U.S. law that denies federal benefits to legally married same-sex couples.

On Tuesday, the court heard arguments on a Proposition 8 case – California’s ban on gay marriage. The justices seemed hesitant of endorsing a broad right for gay and lesbian couples to marry. Today, the court hears argument on a case involving the Defense of Marriage Act (DOMA).

U.S. Solicitor General Donald B. Verrilli, Jr. argues the position of the Obama administration.  Obama wants justices to invalidate DOMA.  Paul Clement, who was the solicitor General during George W. Bush’s administration, will fight to continue the law. Clement is representing the interest of House Republicans who believe marriage should be limited to a man and woman.

DOMA permits benefits such as Social Security survivor payments and tax deductions for opposite-gender married couples. The law was signed by Bill Clinton in 1996 after passing Congress with only 81 out of 535 in opposition. Clinton has since voiced support for invalidating the law.

Today’s case involves Edith Windsor, who was married to a woman.  Windsor contends she should get the federal estate tax deduction afforded heterosexuals when their spouses die. Windsor’s marriage to Thea Spyer was recognized in New York, but she was forced to pay federal estate tax because the federal government failed to recognize her marriage when Spyer died in 2009.  She is seeking a $363,000 refund.

An estimated 133,000 gay couples are married in one of the nine states where it is legal for them to marry.  Although recognized in their state of marriage, the federal government does not.

Today’s decision began with an attack on the Obama administration for abandoning DOMA.to abandon.  Justice Anthony Kennedy questioned Obama’s willingness to defend other laws passed by Congress.

"It's very troubling," said Justice Anthony Kennedy.

Chief Justice John Roberts asked Sri Srinivasan, an attorney defending Obama’s position, how the government will decide which laws to defend.

"What is your test?" Roberts asked.

Justice Antonin Scalia attacked what he called the "new regime." He stated there is "no rational argument" for the government's decision not to defend the existing law.

"I don't want these cases to come before this court all the time," Scalia said, suggesting that the decisions on whether to defend or enforce existing law were part of new way of thinking.

The Obama administration contends that gay and lesbian people have endured discrimination as “minorities with limited political power.” Obama challenges the Supreme Court to apply what is called “heightened scrutiny” to see if DOMA is discriminatory. Once discrimination is determined, it must be ruled that section 3 of DOMA violates the Constitution’s guarantee that each person will have equal protection of the laws.

At the time DOMA was passed no states had legalized same-gender marriage.  Now nine states and the District of Columbia have laws sanctioning same-gender marriages.

"The House is the proper authority to defend (the law)," Paul Clement, representing the Republican House, told the justices.

Chief Justice John Roberts has shown skepticism in allowing gays' and lesbians' the right to marry.

"This institution's been around since time immemorial," he said.

Justice Kenney appears to be looking for a place to hide.

"I just wonder if the case was properly granted," he said.

Justice Elena Kagan raised questions about the importance of procreation.

"It may turn out to be a good thing, it may turn out to be a bad thing," says Justice Samuel Alito. "It is newer than cellphones and the Internet." In other words, we need time to figure things out.

How will the high court handle these cases?  Will they run from Proposition 8?  The court has to rule on DOMA because a lower court ruled it unconstitutional.  Same-gender marriage may be newer than cellphones, but America needs a decision.

There are 1,138 provisions in federal laws that list marital status as a factor in determining benefits, rights and privileges.  The list hasn’t been updated since 2003. Despite owning marriage certificates, same-gender couples can’t take advantage of tax-free health benefits from their employers. They can’t file joint federal income tax returns, which can save families thousands of dollars a year.  If they get divorced, alimony is deemed a gift subject to taxation, while it is tax-free for heterosexual couples.  They are subject to inheritance taxes when a spouse dies and can’t take advantage of a marital deduction.

How can the Supreme Court wiggle out of ruling on California’s Proposition 8 given the number of people grandfathered in as same-gender married couples before the passage of the law? What happens related to the benefits of same-gender couples in California if the court rules DOMA unconstitutional? Will same-gender couples living in states that allow their marriage be granted the right to receive federal benefits, while those married in California being denied because they were married in a state that fails to honor their marriage?

The court can’t run from the truth.  Same-gender marriage is now supported by the majority of American.  It’s time for a ruling.

And American can’t wait until cellphones are obsolete.