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Is DOMA doomed? US Supreme Court hears marriage cases

Marriage is on the minds of the nine U.S. Supreme Court justices these days. Last week, the court heard arguments in two high-profile cases that could change how states and the federal government define marriage. While the decision in Hollingsworth v. Perry will not directly affect same-sex couples in Illinois, the court's ruling on the Defense of Marriage Act in United States v. Windsor could. Much, of course, depends on the state's recognition of same-sex marriage, a matter that is still pending in the General Assembly.

Same-sex marriage advocates have long decried DOMA as a major barrier to reforms at the state level. The act denies federal benefits to same-sex married couples, even if their marriages are recognized under state law. The consequences for legally married same-sex couples are more serious than the additional paperwork, for example, that comes with not being able to file a joint federal tax return. Taxes, disability payments, Social Security benefits, inheritance -- DOMA has meant both financial and emotional turmoil for same-sex marrieds.

It was a tax issue that brought the case to the Supreme Court. Edie Windsor and her partner had been together for 40 years when they got married, legally, in their home state. When Windsor's wife died two years later, the federal government sent her an estate tax bill. If her wife had been her husband, she would have been eligible for the federal estate tax exemption. Thanks to DOMA, though, she was not.

During arguments of the case last week, court analysts sensed that many justices were leaning toward tossing DOMA as unconstitutional. Comments and questions focused on the fact that marriage has traditionally been left to the states to define. The extent of the law's effect on couples' lives was also touched on. The core of the issue, of course, is whether DOMA violates equal protection rights under the Constitution.

The court's decision is further complicated by the Obama administration's decision two years ago not to defend DOMA. The administration's reasoning was that the law is unconstitutional. Conservative justices were concerned that a president or attorney general could pick and choose which laws to defend. What same-sex marriage advocates do not want to see is the court's ruling focusing on that issue and not on DOMA itself.

Stranger things have happened. The decision is due at the end of the term, in June.

Source: Reuters, "U.S. Supreme Court indicates it may strike down marriage law," Lawrence Hurley, Joan Biskupic, David Ingram and Joseph Ax, March 27, 2013

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