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Defense of Marriage Act one step closer to Supreme Court

The First U.S. Circuit Court of Appeals has entered the ever-escalating battle that same-sex marriage has become. The court ruled this week that the 1996 federal Defense of Marriage Act does in fact discriminate against same-sex married couples. However, same-sex couples hoping for nationwide acceptance of their right to marry, to have children and even to divorce will have to wait a little bit longer: The court said DOMA will remain in full effect until the U.S. Supreme Court has reviewed the law.

Indeed, this decision, along with other decisions on the books and in the pipeline, means that DOMA will likely appear on the U.S. Supreme Court's docket in the next session. The court has heard its last case of the 2012 session, and court commentators do not anticipate the justices to reconvene before the next session starts in October.

The decision is rooted in federalism more than it is in anti-bias laws. As we have said here, the laws that govern marriage and dissolution of marriage differ from state to state. Family law matters are typically the purview of state legislatures, not Congress. The discrimination comes into the picture when the U.S. government denies a married same-sex couple federal benefits but the state government does not deny the spouses state-based benefits. As the attorney general involved in one case said, DOMA effectively creates two classes of marriage, and that is clearly unconstitutional.

For example: Among the plaintiffs in the case was a widower who was legally married in his home state. When his partner died, the federal government refused to pay Social Security death benefits -- under DOMA, the marriage was not legitimate.

It's important to note that this court stopped short of mandating states to recognize same-sex marriage or ruling that same-sex couples have a constitutional right to marry. Nor did the court say that a state that does not recognize same-sex marriage must recognize a same-sex marriage performed in another state.

Source: Chicago Tribune, "Court says marriage law discriminates against gay couples," Scott Malone and Terry Baynes, May 31, 2012

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