These benefits include breaks on estate taxes, health insurance for spouses of federal workers and Social Security survivor benefits. A ruling against DOMA would allow legally married gay couples or, in some cases, a surviving spouse in a same-sex marriage, to receive benefits and tax breaks resulting from more than 1, federal statutes in which marital status is relevant.
The situation could become complicated for people who get married where same-sex unions are legal, but who live or move where they are not. What procedural problems could prevent the court from reaching a decision about DOMA?
As in the Proposition 8 case, there are questions about whether the House Republican leadership has standing to bring a court case to defend the law because the Obama administration decided not to.
House Republicans argue that the administration forfeited its right to participate in the case because it changed its position and now argues that the provision is unconstitutional. If the Supreme Court finds that it does not have the authority to hear the case, Windsor probably would still get her refund because she won in the lower courts, but there would be no definitive decision about the law from the nation's highest court and it would remain on the books.
It is possible the court could leave in place appeals court rulings covering seven states with same-sex marriage: Connecticut, Maine, Massachusetts, New Hampshire, New York, Rhode Island and Vermont.
Mark Sherman June 23, The waiting is almost over. What if the Supreme Court upholds Proposition 8? What if the court strikes down Proposition 8? Are there other potential outcomes? Are the possibilities for the DOMA case as complicated? This argument is so riddled with holes that one wonders whether it was included in the BLAG brief as a joke. Here, I shall just mention a few of the worst deficiencies. To begin, the government legally recognizes marriages of opposite-sex couples regardless of whether they pose any risk of accidental procreation.
If the government were really interested in conserving the resources that marriage confers for those persons who may accidentally procreate, it would not give legal recognition to the marriages of post-menopausal women or sterile men. Furthermore, even for fertile opposite-sex couples, the legal availability of marriage hardly prevents out-of-wedlock accidental procreation. No one is legally required to marry, and of course, opposite-sex couples that do marry, and then accidentally procreate, can then divorce.
And, indeed, it is not. The rational-basis test is the most forgiving form of constitutional scrutiny that the courts apply. In its traditional formulation, it requires only that some set of facts might exist under which the challenged law could constitute a rational means of pursuing some legitimate end.
The accidental procreation argument may not even satisfy this very forgiving test. But even if it does, that would not be a sufficient reason to uphold DOMA Section 3, given the substantial discrimination that gay and lesbian Americans still face. Thus, the accidental procreation argument only works—if it works at all—if the Court accepts the further claim by the BLAG that courts should apply the most minimal scrutiny possible to laws that discriminate on the basis of sexual orientation.
Accordingly, the BLAG brief also argues that discrimination based on sexual orientation should be treated differently, for constitutional purposes, from the sorts of discrimination that the Court has deemed presumptively suspect: race, sex, and national-origin discrimination. The BLAG brief offers various arguments for treating sexual orientation this way.
I find none of them persuasive, but I will focus here on one particularly bad such argument. One such factor is a lack of political power on the part of those who are victims of the particular kind of discrimination.
There, Madison predicted that in a large, heterogeneous country, no single faction would dominate or be dominated because politics will involve shifting alliances of different factions. But what if some group cannot form such alliances because of prejudice? Then members of that group will be unable to adequately protect their interests through political means.
Modern case law justifies heightened judicial scrutiny for such groups in part as a corrective to this defect in the political process. Did you follow that? This head-spinning line of reasoning fundamentally misunderstands how equal-protection adjudication works. If DOMA is upheld or if the court's ruling on the constitutionality of a federal definition of marriage is less clear, the result could be continued legal uncertainty for gay couples. One way Democrats in the Senate and gay marriage advocates have hoped to resolve this is by attaching an amendment to the immigration bill that would give same-sex couples the same benefits as heterosexual couples under the immigration law.
But Democrats face an uphill struggle in Congress where Republicans have staunchly opposed the inclusion of a same-sex marriage amendment in the immigration bill. A principal Republican sponsor of the legislation, Sen. Marco Rubio , R-Fla. If the Supreme Court upholds DOMA, there is only one way for same-sex couples to be recognized by immigration law: congressional action. That means any benefits given to heterosexual couples couples in the immigration bill, like the ability to petition for a green card on behalf of a spouse, would not apply to same-sex couples.
Patrick Leahy, D-Vt. That means that in any of the 12 states that recognize same-sex marriage, the federal government would defer to the states in determining whether that marriage is valid for immigration purposes.
0コメント