NY Court to Hear Arguments in Gay Marriage Case
NEW YORK - The Defense of Marriage Act is set for a showdown in a federal appeals court later this month between those who say it is right for the government to speak of marriage only in heterosexual terms and those who say doing so discriminates against same-sex unions.
In June, U.S. District Judge Barbara Jones in Manhattan declared the 1996 law unconstitutional, prompting former Attorney General John Ashcroft, among others, to submit to the 2nd U.S. Circuit Court of Appeals written arguments supporting the statute. Others have written legal briefs opposing it, including a filing by the U.S. Justice Department saying the law must go because it was "motivated in substantial part by disapproval of gay and lesbian people."
Oral arguments are scheduled for Sept. 27.
Already, the 1st U.S. Circuit Court of Appeals in Boston has affirmed a federal judge’s 2010 ruling against the law. Two federal judges in California and one in Connecticut also have ruled the law unconstitutional.
Jones’ ruling came after Edith Windsor sued the government in November 2010 after she was told to pay $363,053 in federal estate tax after her spouse of 44 years, Thea Spyer, died in 2009. They had married in Canada in 2007.
Jones said the law’s attempts to define marriage "intrude upon the states’ business of regulating domestic relations."
The law was passed by Congress and signed by President Bill Clinton after the Hawaii Supreme Court issued a ruling in 1993 making it appear Hawaii might legalize gay marriage. Since then, many states have banned gay marriage, while eight states have approved it, led by Massachusetts in 2004 and continuing with Connecticut, New York, Iowa, New Hampshire, Vermont, Maryland and Washington state. Maryland and Washington’s laws aren’t yet in effect and might be subject to referendums.
In February 2011, President Barack Obama and Attorney General Eric Holder instructed the Department of Justice to no longer defend the Defense of Marriage Act.
In arguments submitted to the 2nd Circuit last month, former attorneys general Edwin Meese III and Ashcroft called that decision "unprecedented in our nation’s history," because it did not involve separation of powers concerns.
"The administration’s change of position marks an unprecedented and ill-advised departure from over two centuries of Executive Branch practice," they wrote. "Historically, the president’s constitutional obligation to ’take care that the laws be faithfully executed’ has been understood to include the vigorous defense of acts of Congress when they are challenged in court."