An Interview with Lawyers.com Editor-in-Chief Larry Bodine Q. What are the likely outcomes of the DOMA and Proposition 8 cases? I’ve read the merits...

An Interview with Lawyers.com Editor-in-Chief Larry Bodine

Q. What are the likely outcomes of the DOMA and Proposition 8 cases?

I’ve read the merits briefs in both cases, and I think the Supreme Court is going to have to struggle to find ways to uphold these two laws. I think we’re on the threshold of a historic decision on same sex marriage. I predict the Supreme Court is going to rule in favor of same sex marriages, and strike down these laws.

Q. How did these rulings come to be? What have been the rulings and appeals in the past?

The DOMA (Defense of Marriage Act) case began with a couple that had a legally recognized marriage in the state of New York, Edith Windsor and Thea Spyer. Spyer came down with MS, and shortly before she died, the couple were married in Canada. When Edith handled the estate for Spyer, the IRS said that because of DOMA she was not a spouse, and therefore would not get the spousal exemption from the estate tax. She ended up having to pay an extra $363,000 in estate taxes. Everyone that has looked at the case agrees that if Edith Windsor’s spouse were a man she wouldn’t have had to pay the taxes. She appealed, and the Second Circuit of Appeals in New York struck down DOMA, as did the First Federal Court of Appeals in Boston in another case. They said it violated the Equal Protection Clause.

In Proposition 8, the electorate of California in one of their ballot initiatives amended their state constitution to say that a marriage is composed of a man and woman. DOMA says virtually the same thing. The initiative was challenged before the Ninth U.S. Circuit of Appeals, which also struck it down for the very same reasons, in that Prop. 8 carved out a persecuted minority and created a law that discriminated against them. Under the U.S. Constitution, the Equal Protection Clause forbids this. From a legal analysis, they take prejudice and turn it into the law. That’s something that just doesn’t stand up to the U.S. Constitution.

Q. How many states recognize same sex marriages?

Nine states currently recognize same sex marriage, plus the District of Columbia.

Q. What do you say to people that propose the same and equal rights for same sex partnerships but not under the legal term of marriage?

In fact the issue comes up in the California Prop. 8 case. In California, they have a domestic partnership statute. They have many of the rights that you get from being married. But for the couple involved, it’s thin soup, in that it’s a second class legal arrangement. It also doesn’t entitle you to obtain all of these federal tax deductions, it doesn’t help them get covered by medical benefits, or veteran’s benefits if their spouse dies, or social security benefits.

Q. How many people could be impacted by the court’s rulings? What will happen to the people that are already legally married in the U.S.?

According to the briefs, there are 130,000 legally married same sex couples. There are 18,000 in California alone, and 40,000 children living in those same sex marriages. All of those marriages will continue to be recognized if the Court strikes it down, but there will be reciprocity in the other states. It all depends on the wording the Supreme Court uses, but if you have a same sex marriage it will be recognized by every state in the union.

Q. What are the purposes of these laws? How have they been written out and how will they change depending on how the Supreme Court rules?

One of the things that I spent a lot of time on when I was reading the briefs was how the people that supported these laws could justify them. The legal basis for DOMA and Prop. 8 is that they claim to advance the institution of marriage by encouraging people that are going to have babies to be married. So it’s all about what they call “responsible procreation and childrearing.”

When you look at the actual wording of the statute that marriage is between a man and woman, you can see right away that the argument falls apart. These laws create no incentive for people to have babies and get married. People get married for all kinds of reasons, not just to have children. There are couples that planned not to have children, senior citizens past child bearing age that are married, and couples that physically can’t have babies. In fact, convicts can get married, but people of the same sex can’t. It makes you realize that marriage is more than having babies—it’s about forming a household. It’s about forming a social relationship and economic partnership.

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