In the majority opinion striking down the defense of marriage act,, the court debated whether the issue was properly before the court given that the Attorney General refused to defend DOMA in court. The House of Representatives had formed a group called the Bipartisan Legal Advocacy Group (BLAG) to vigorously defend the constitutionality of the law and appear in place of the attorney general before the court. The court stated that had BLAG not come forward to defend the law, thereby providing a substantial adversarial argument for a finding of constitutionality, the court might have declined to review the lower court decision. Ironically, the arguments by the very group that sought to prevent the court from finding DOMA unconstitutional, gave the court a hand up in finding DOMA unconstitutional.
Today the court declared: "DOMA’s principal effect is to identify and make unequal a subset of state-sanctioned marriages. It contrives to deprive some couples married under the laws of their State, but not others, of both rights and responsibilities, creating two contradictory marriage regimes within the same State."
The Supreme Court has told the federal government it cannot discriminate. It is time for the remaining states which prohibit gay marriage to end discrimination. These states will rise, one by one.
For same sex couples, the implications are enormous. It will impact estate planning, real estate, probate, inheritance rights, criminal matters, immigration issues, social security, and hundreds, if not thousands of federal laws which provide special considerations to married couples. If you would like us to investigate how it will make a difference in your case, please call Glickman Turley at 617.399.7770.
The DOMA decision can be found here: UNITED STATES v. WINDSOR, EXECUTOR OF THE ESTATE OF SPYER, ET AL., No. 12–307.
