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US Supreme Court: Will marriage be on the docket soon? p. 2

We are continuing our discussion of the U.S. Supreme Court and same-sex marriage. The Illinois General Assembly is just one of many state legislatures grappling with the issue; several states are preparing for votes to approve constitutional amendments the define marriage as a union between one man and one woman.

Court watchers believe two cases are likely to make it to the Supreme Court in this term or the next. We discussed the decision from the 9th U.S. Circuit Court of Appeals in our last post. The other case, a challenge to the federal Defense of Marriage Act, has yet to be decided; the 1st Circuit should hear arguments in April.

The DOMA case centers on Section 3 of the law, the definition of marriage for federal purposes. Remember, family law is generally a state matter. DOMA's definition -- that is, marriage is a legal union between one man and one woman -- affects eligibility for federal benefits.

The plaintiffs were married under their state's same-sex marriage law, but under DOMA they could not collect federal marriage-related benefits. They challenged Section 3 as an unconstitutional violation of the Fifth Amendment. The lower court agreed. As with the Proposition 8 case, the court said there was no rational basis for treating same-sex married couples differently from heterosexual married couples.

In an unusual turn of events, the U.S. Department of Justice declined to appeal the decision. The Republican contingent of the Legal Advisory Group of the U.S. House of Representatives took up the case.

The plaintiffs argue that the Supreme Court has said that the federal government must treat married couples the same way their state governments treat them. DOMA took that away -- a clear violation of equal protection guarantees under the Constitution.

The Legal Advisory Group is relying on arguments made in the Prop 8 case: child welfare concerns, responsible procreation, caution and tradition. They, too, point to Supreme Court precedent, this time a case the court refused to hear because there was no federal issue involved.

DOMA opponents see the Legal Advisory Group as a potent adversary. The group's agenda is tied to larger, national policy issues, not to the narrow facts of the plaintiffs' situation.

The next step is the 1st Circuit arguments, then the court's decision. We will continue to follow this case and the Prop 8 case.

Source: Law.com, "High court in marriage cross hairs," Marcia Coyle, Feb. 13, 2012

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