The issue of marriage equality for same-sex couples has been ever-present in the news these days, particularly as more and more states are extending rights to same-sex couples. Those of us who are U.S. Supreme Court watchers are anxiously awaiting the decision in the two pending cases that were argued in March: United States v. Windsor, Docket No. 12-307, and Hollingsworth v. Perry, Docket No. 12-144.
These two cases address separate and important parts of the marriage equality movement. In Windsor, the court is examining the constitutionality of the Defense of Marriage Act (DOMA) provision that prohibits the federal government from recognizing same-sex marriages in states that have sanctioned them. The facts of that case highlight the disparity between how the federal government treats lawfully married heterosexual and homosexual couples. Edie Windsor and her wife, Thea Spyer, were together for 42 years when Spyer passed away from complications of multiple sclerosis. The couple’s Canadian marriage was recognized in New York, where they lived, but Windsor was nonetheless subject to a $363,000 inheritance tax bill for the property that they jointly owned. Had they been a heterosexual couple, there would be no such tax. The district court and the U.S. Court of Appeals for the Second Circuit agreed that Section 3 of DOMA violated the Equal Protection Clause of the Constitution, and found that distinctions based on sexual orientation were entitled to a heightened level of scrutiny.
