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NY'ers closely watching DOMA case

By Colleen Siuzdak
Staff writer

The U.S. Supreme Court has decided to hear challenges to the Defense of Marriage Act, which does not federally recognize same-sex marriages, like ones shown above, as legitimate. Attorney General Eric Schneiderman says this act intrudes on New York’s Marriage Equality Law. Photo by AP.
December 17, 2012
The United States Supreme Court announced it will hear a challenge to the Defense of Marriage Act, and New York State Attorney General Eric Schneiderman's brief, filed in 2011, argues the law is unconstitutional with respect to New York's marriage law.

In Schneiderman's brief, he argues: "By refusing to recognize for federal purposes marriages that are valid under state law, DOMA intrudes on matters historically within the control of the states, and undermines and denigrates New York's law designed to ensure equality of same-sex and different-sex married couples. Thus, DOMA threatens basic principles of federalism. Moreover, it classifies and determines access to rights, benefits, and protections based on sexual orientation, and also based on sex."

Schneiderman is concerned with the federal marriage act intruding on New Yorkers' right to marry an individual of the same-sex.

"The state of New York has long recognized out-of-state, same-sex marriages, and the enactment of the Marriage Equality Act further cements our state's position on this critical civil rights issue," Schneiderman said. "The Supreme Court should affirm the rule of the Second Circuit and declare [Defense of Marriage Act] to be unconstitutional."

"I am pleased that the Court has decided to hear this case and I am hopeful that we will prevail," Schneiderman said in a statement.

The Defense of Marriage Act, enacted in September 1996 under former President Bill Clinton, establishes the federal definition of marriage to be a union between one man and one woman as husband and wife and the definition of spouse to be only a person of the opposite sex as a husband or wife.

This law prohibits same-sex couples to be federally recognized as married. New York passed the Marriage Equality Act, which allowed all couples, including same-sex couples, to be treated equally under the laws of New York.

In November 2010, the American Civil Liberties Union filed a lawsuit --Windsor v. United States -- on behalf of Edith Windsor who was forced to pay more than $363,000 in federal taxes on her wife's inheritance after she passed away because her marriage is not federally recognized as legitimate.

"Edie and Thea's home state of New York has long respected the marriages of same-sex couples and explicitly supports the freedom to marry," said Mariko Hirose, staff attorney with the New York Civil Liberties Union, and a lawyer working on the Windsor case. "Married couples who are members of the same-sex are denied more than 1,300 federal benefits that other married couples enjoy. It is only right that the federal government respect the state's decision and treat all married couples fairly."

Windsor and Thea Spyer, who lived in New York City for 44 years, were legally married in 2007 in Canada, where same-sex marriages are allowed. When Spyer died in 2009 due to complications from multiple sclerosis, she left the estate to her wife, Windsor, who now seeks a refund on the taxes she paid.

Evan Wolfson, founder and president of Freedom to Marry, a nationwide campaign for marriage equality, said it is "urgent" to keep the issue of freedom to marry prominent in the public opinion because of the Supreme Court's decision to hear the challenges of the federal marriage act.

"By agreeing to hear a case against the so-called Defense of Marriage Act, the Court can now move swiftly to affirm what 10 federal rulings have already said: DOMA's 'gay exception' to how the federal government treats married couples violates the Constitution and must fall," Wolfson said in a statement. "When it comes to the whole federal safety net that accompanies marriage − access to Social Security survivorship, health coverage, family leave, fair tax treatment, family immigration and over 1,000 other protections and responsibilities – couples [that] are legally married in the states should be treated by the federal government as what they are: married."

Supporters of the Defense of Marriage Act wish to keep marriage as a legal relationship between a man and a woman. Tony Perkins, president of the Family Research Council, a nationwide Christian advocacy group for the "traditional family", said he is "pleased" with the Supreme Court's decision to hear the rulings against the Defense of Marriage Act.

"Virtually, nothing is more important to the future of our country than marriage and family," Perkins said in a statement. "… we remain confident that in the end, the U.S. Supreme Court will recognize that DOMA is supported by numerous legitimate legislative purposes- all of which are consistent with our principles of federalism. The argument that the authors of our Constitution created or even implied a 'right' to redefine 'marriage' lies outside our constitutional law."

The Rev. Jason McGuire, executive director of New Yorkers for Constitutional Freedoms, said he does not see a potential conflict between DOMA and New York state's marriage law because they define marriage in different ways.

"I think what DOMA does is it defines marriage on a federal level and I don't see a conflict between a federal and state issue at this point," McGuire said. "I am confident the justices will recognize the constitutionality of DOMA."

Stephen Wasby, professor emeritus of political science at The State University of New York at Albany, said cases brought to the U.S. Supreme Court, on average, are more likely to be reversed than affirm an existing decision, and the crux of this issue is whether the justices will take public opinion into account.

"The big question is whether the court will follow public opinion, which increasingly supports same sex marriage, but there are at least three members of the court that I cannot see changing their views because of public opinion."

Wasby cannot make predictions of the Supreme Court's ruling but speculates this is more of a state matter rather than a federal one.

"The [U.S. Supreme] Court can say, in effect, if states choose to have same-sex marriage, then the federal government cannot interfere," Wasby said. "Regulation of marriage has historically been a state matter not a federal concern."

Nathan Schaefer, executive director of the Empire State Pride Agenda, an advocacy group for lesbian, gay, bisexual and transgender citizens, said same-sex couples and their families should be protected by the federal government and hopes the Supreme Court will rule in opposition to the portion of the Defense of Marriage Act that defines marriage as an act strictly between a man and a woman.

"The Empire State Pride Agenda welcomes the Supreme Court's historic decision to deliberate on this crucial matter of equality and justice, fairness and love. We are hopeful that the Supreme Court will grant all married couples, in New York and other states, the recognition they deserve by upholding the multiple lower court rulings that have already declared sections of DOMA unconstitutional," Schaefer said in a statement. "We view these deliberations as a critical step toward ending discrimination and advancing equality for all Americans."

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