Federal Scholars argue that DOMA is not necessary and proper for Congress to carry out any enumerated power as DOMA affects many different kinds of benefits, not just benefits related to the power of the purse. DOMA could therefore be found to be improper as a new, sweeping expansion of Congressional power without requiring the Court to decide whether classifications based on sexual orientation were suspect.
Before reaching a decision on the merits, the court could decide that this case is not properly before the Court and remand it for further proceedings because the Obama administration has chosen to enforce, but not defend, DOMA. Windsor has a cause of action against the United States government for the recovery of the tax refund. Also, one house of Congress, or in this case a subsection of one house, cannot assert an injury for Congress as a whole.
Windsor argues that DOMA is unconstitutional as it tramples on her right to equal protection under the Fifth Amendment. BLAG argues that DOMA is constitutional and the law should undergo minimal scrutiny under a rational basis test because sexual orientation is not a historically protected class. Alternatively, the Court may go so far as to fully overturn DOMA and require that each state legally recognize same-sex marriages, which would allow for spouses of same-sex partners to receive a plethora of federal benefits they are currently denied.
The authors would like to thank Professor Michael C. Dorf for his insights into this case and former Supreme Court Reporter of Decisions Frank Wagner for his assistance in editing this preview. Please help us improve our site! No thank you. United States v. Court below:. Whether DOMA Should Survive Review on the Merits Under the rational basis standard of review, the government needs to demonstrate a legitimate purpose for using the suspect classification, which in this case would be classifying same-sex marriage differently from traditional opposite-sex marriage.
Role of Federal Government in Defining Marriage The Court could place special importance on the fact that this is a federal law about marriage, an issue that has traditionally been left to the states, as both the United States and Windsor argue. Whether Jurisdictional Concerns Should Prevent the Court From a Decision on the Merits Before reaching a decision on the merits, the court could decide that this case is not properly before the Court and remand it for further proceedings because the Obama administration has chosen to enforce, but not defend, DOMA.
Written by Michaela Chelsea Dudley. This head-spinning line of reasoning fundamentally misunderstands how equal-protection adjudication works. Courts typically will reject any claim that some group is being unfairly treated in a period when discrimination against that group is pervasive, because judges share the deepest prejudices of the public at large. An oppressed group must gain some modicum of political power before any part of the legal system will take their claims seriously.
But if that political power is then invoked to defeat their claims, there will be no time at which lingering prejudice will be deemed unconstitutional. Consider a close parallel. Women did not even have the right to vote, after all. And because the Justices of the Supreme Court shared the prejudices of the wider society, they dismissed equal protection claims made by women. The Supreme Court did not recognize sex discrimination as a presumptively problematic basis for American laws until the s, a time when women had muchmore political power than they did a century earlier.
Yet if the logic of the BLAG brief had been followed with respect to sex, the Court would have and should have ruled against the equal protection claims of women precisely because society was coming to realize that sex discrimination violates principles of equality.
Section 2 of DOMA—which is not at issue in the Windsor case—does serve the interests of state sovereignty. It purports to authorize states that do not themselves recognize same-sex marriage to deny recognition to same-sex marriages that have been solemnized in other states. But this should count for nothing, because the federal government has no power to set the content of family law for a state in the first place.
DOMA was enacted by a Congress that either shared or was catering to a widespread prejudice against gay and lesbian Americans. Supreme Court precedent quite properly rejects such animus to a class of persons as a basis for defending a law against an equal- protection challenge.
Hence, Mr. The arguments that Clement has had to concoct in place of the real reasons for the enactment of DOMA Section 3 are so weak because they were made up after the fact. Podcast: Play in new window Download. The broadest ruling would be to say all of the states where same-sex marriage is not allowed is unconstitutional — but I don't think the court is ready to go there.
If the justices decide not to take the case, California could begin issuing marriage licences within days. Wendy Goffe, a lawyer in Seattle who has written on the issue , also believes that the justices will decline the Proposition 8 case. Goffe said: "I'm not convinced they would take it because the Supreme Court [is] very much in support of state rights.
Citing the decision by the Supreme Court in January to uphold controversial parts of an immigration law in Arizona , she said: "If you look at the Arizona decision — where they took that and upheld the case and that is a terrible law, but they said it's not our place to mix in with the state. The only way they might pick up Prop 8 is if they make a decision to take all the cases before it.
But that would lead to a big mess. It could take decades. This article is more than 8 years old. Justices will decide next week whether to consider the constitutionality of same-sex marriage. Reuse this content. Committed same-sex couples who are legally married in their own states can now receive federal protections - like Social Security, veterans' benefits, health insurance and retirement savings. Find out more at glaad. What is the status of DOMA right now?
Because DOMA was ruled unconstitutional, does that make marriage equality legal throughout the country? How does the ruling on DOMA affect families? How does the ruling on DOMA affect binational families?
How does the ruling on DOMA affect military families? How does the repeal of DOMA affect the average family? This grants legally married same-sex couples the same benefits received by their straight peers including: Health insurance and pension protections for federal employees' spouses Social security benefits for widows and widowers Support and benefits for military spouses Joint income tax filing and exemption from federal estate taxes Immigration protections for binational couples Rights to creative and intellectual property Political contribution laws What about opponents' claims that DOMA was needed to protect children?
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