Supreme Court should universally legalize gay marriage
The U.S. Supreme Court has the opportunity to finish the job it started with its ruling striking down a key component of the Defense of Marriage Act two years ago. If the court remains true to that decision, it will find that same-sex couples have a constitutional right to marry and have their union recognized by civil law, the same as heterosexual couples.
In 2013, the court found that in denying various federal benefits to legally married same-sex couples, DOMA violated their right to equal protection under the law. That case involved Edith Windsor, the widow of Thea Spyer, whom she legally married in Canada in 2007. When Ms. Spyer died in 2009, Ms. Windsor had to pay $363,053 in estate tax because DOMA prevented her from being considered Ms. Spyer's spouse, and so exempt from the tax.
That unequal treatment is unconstitutional, the Supreme Court found in its 5-4 decision.
Four other federal appeals courts - the 4th, 7th, 9th and 10th circuits - have used the language in Justice Anthony Kennedy's majority opinion to strike down as unconstitutional state laws and amendments blocking homosexual couples from getting marriage licenses. Due in large part to those ruling, the right of same-sex couples to marry has expanded to 36 states.
Only the 6th Circuit has ruled that states can constitutionally bar such marriages.
Faced with these conflicting rulings, the court will hear arguments in April and probably issue a decision near the end of its term in June. Once again, Justice Kennedy is likely to be the swing vote.
Given the sense of fairness and humanity that weaves through Justice Kennedy's ruling in the DOMA case, it is hard to imagine him backing the out-of-step 6th Circuit and rolling back the right of legal marriage achieved in many states due to the other circuit court rulings.
Justice Kennedy found that DOMA's constitutional flaws included its "interference with the equal dignity of same-sex marriages" and its "principal purpose … to impose inequality."
As many lower courts have found, the same thinking holds true for laws denying civil marriages to same-sex couples. Such prohibitions are unconstitutional and should be struck down.
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