Marriage Law Likely Headed To Supreme Court

By Nina Totenberg

Published October 19, 2012 at 3:00 PM EDT

A federal appeals court ruling on Thursday has catapulted a New York case to the head of the line, as the Supreme Court considers which of many cases it should use to decide whether the 1996 Defense of Marriage Act (DOMA) is constitutional.

For more than a year, the lower courts have been issuing decisions striking down DOMA, declaring the law's provisions to be unconstitutional discrimination. The statute defines marriage as being only between a man and a woman, meaning that the federal government is barred from recognizing same-sex marriages even when they are legal and recognized by state law.

Edith Windsor, whose case led to an appeals court in Manhattan striking down the Defense of Marriage Act.

So, if a same-sex couple is legally married in any of the six states where gay marriage is authorized, that marriage is not recognized by the federal government. That also means that such couples are denied benefits under hundreds of federal laws — benefits that are automatically granted to heterosexual married couples. Examples include Social Security survivors benefits and spousal health benefits for federal employees.

In the case from New York this week, a same-sex couple was denied a tax benefit. A New York widow paid $363,000 in federal estate taxes when her same-sex spouse died. She would not have had to pay that money had her spouse been a man.

The New York decision quickly jumped to the head of the queue of DOMA cases pending before the Supreme Court. Currently, there are seven such cases, all involving decisions striking down DOMA. Until Thursday, however, only one had run all the usual legal hurdles and been decided by an appeals court. The catch with that case was that it appeared Justice Elena Kagan might be recused, which would leave an eight-justice court to hear the case, and the possibility of a 4-to-4 tie vote.

The recusal problem was clearly of concern to the justices, and so they put off consideration of all of the DOMA cases at the beginning of the term. Knowing that the New York case was about to be argued, the justices were apparently hoping it would be decided and appealed.

That is, in fact, exactly what happened. In amazingly short order, the appeals court issued a 43-page decision just two weeks after hearing oral arguments. This effectively put the case at the head of the Supreme Court line.

Also pending at the Supreme Court is a lower court decision that strikes down California's Proposition 8, which bans same-sex marriage. The justices could decide to pair that case with the DOMA case, but there are also good reasons that will not happen. The court usually tries to avoid jumping headlong into major social issues. It most often tries to act slowly, one bite at a time.

If the court were to strike down DOMA, that still would leave in place state laws banning same-sex marriage. Since the Proposition 8 case only involves California, not the whole country, it could punt on the case. Alternatively, the court could simply send the Proposition 8 case back to the lower court to re-evaluate the question in light of any new standards set out in a DOMA ruling.