Supreme Court could shape future of gay marriage

Two years later, after Spyer died and left her estate to her partner, Windsor discovered that under a 1996 federal law defining marriage as between a man and woman she owed the Internal Revenue Service $363,063 in estate taxes. Had she been a man, she would have received Spyer’s estate tax free.

That dispute between an 83-year-old widow and the IRS is one of two landmark cases on gay marriage this week before the U.S. Supreme Court. The justices not only have to decide if the 1996 federal law is constitutional, but also whether voters in California in 2008 violated the constitutional rights of gay couples when they approved Proposition 8 and outlawed same-sex marriage.

The justices’ rulings in the two cases – which will be argued Tuesday and Wednesday – could impact same-sex marriage laws in Ohio. If the court strikes down the California referendum, it could raise serious questions about the constitutionality of the gay-marriage ban approved by voters in Ohio in 2004.

But if the justices invalidate the federal law while upholding the California referendum, they would signal that the states have sole authority to decide their own marriage laws, upholding a 1948 decision written by Justice Felix Frankfurter that “under the Constitution, the regulation and control of marital and family relationships are reserved to the states.’’

“This one is a very hard one to guess,’’ said Marc Spindelman, a professor of law at Ohio State University.

Question of who regulates marriage

The two cases have attracted a blizzard of legal briefs authored by some of the foremost legal minds in the United States – including the current United States Solicitor General and four former solicitors general.

While many Democrats – including former President Bill Clinton, who signed the 1996 federal law – now support legalization of same-sex marriage, the issue is particularly intense among Republicans, pitting conservatives against conservatives.

Theodore B. Olson, who served as solicitor general under former President George W. Bush, has argued that Proposition 8 violates the Equal Protection Clause of the 14th Amendment, while a group of conservative law professors argued that the federal law – known as the Defense of Marriage Act – violates the Constitution because it “falls outside’’ the powers of Congress to regulate marriage.

Their legal opponents include Charles Cooper, a former assistant attorney general under President Ronald Reagan, and scores of House Republicans. Rep. Jim Jordan, R-Urbana, warned in a radio interview last week that “to have nine justices at a court say something different than what millions of people around the country have said is just flat-out wrong. It will be an explosive and outrageous kind of decision.’’

The justices will hear the cases at a time when the ground has shifted dramatically. Just this month, Sen. Rob Portman, R-Ohio, dramatically reversed his opposition to same-sex marriage after his 21-year-old son Will told Portman and his wife Jane that he was gay.

Portman was part of an overwhelming majority of senators and House members who voted for the 1996 federal law. Supporters of the law have argued in legal papers that the law “does not bar or invalidate any state-law marriage, but leaves states free to decide whether they will recognize same-sex marriage.’’

Instead, they contend the law “simply asserts the federal government’s right as a separate sovereign to provide its own definition for purposes of its own federal programs and funding.’’

Possible impact of ruling

In many ways, Windsor’s case is more narrow than the California case. In a conference call with reporters Thursday, Roberta Kaplan, the New York attorney who will argue the case on behalf of Windsor, said the major questions could be restricted to the nine states and the District of Columbia that have legalized same-sex marriage.

In those states, she said, the federal law means that married gay couples “are treated as second-class citizens,’’ adding that while the “Constitution can always give rights,’’ with the federal law “rights are being taken away.’’

For example, she said, under the federal law, gay married couples in those nine states are treated differently than heterosexual married couples. If the federal government does not recognize the validity of gay marriage, then the government can deny one of the spouses Social Security death benefits or force them to pay the estate tax.

By contrast, the California case presents the justices with a more difficult problem: By striking down Proposition 8, they would be directly contradicting the will of California voters who supported the referendum while virtually legalizing same-sex marriage across the country.

In papers filed with the court, Cooper warned that a ruling invalidating Proposition 8 would “have widespread and immediate negative consequences,’’ adding that it “would have the perverse effect of creating strong disincentives for states to experiment with civil union or domestic partnership laws.’’

Spindelman, the OSU professor, said the justices will have to decide between the competing notions: “that we live in a democratic society in which the will of the majority is the rule’’ balanced against the concept that “constitutional rights are not subject to popular vote.’’

Jessica Wehrman of the Washington Bureau contributed to this story.

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