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DOMA Has Its Day In Court, Will It Survive?

Marriage EqualityThe Defense of Marriage Act is before the US Supreme Court today. This is the second case covering same-sex marriage in as many days. DOMA was written back in the Clinton Administration and bars Federal recognition of same-sex marriages. Currently, nine states and the District of Columbia recognize same-sex marriages. The arguments regarding DOMA could hinge on several key precedents; however, if the questions during the Prop 8 hearing from the Justices are any indication, DOMA may end up being struck down without the Supreme Court ruling on it.

The Justices are reviewing the case of US v. Windsor. In 2009, Windsor’s wife and partner of 44 years died. Thea Spyer, Windsor’s wife, left everything to Windsor. Had Windsor married a man, her estate tax would have been nothing, but because she married a woman, DOMA forced her to pay nearly $400,000 in federal estate taxes.

Striking down DOMA would effectively negate state bans on same-sex marriage in part because of the Constitutional requirement that all states recognize the contracts entered into in other states. This may prove to be the thorny issue given the apparent reluctance of Justice Anthony Kennedy to spread same-sex marriage across the United States.

Opinions on same-sex marriage have changed greatly. Even Bill O’Reilly has changed. At one time, the FOX News talking head actually said that two people of the same sex getting married would lead to people having sex with ducks. Yesterday, he changed direction calling for an end to bans on same-sex marriage.

Former President Bill Clinton, current President Barack Obama, and a whole host of people have called for DOMA to be struck down claiming that it is bad law.

DOMA may rest on the question of whether or not the Congress had a right to set up an independent group to hire a lawyer to defend DOMA in court after the Obama Administration withdrew from defending the law after the initial decision by the US District Court.

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