On Wednesday, the second of two days of landmark arguments over same-sex marriage, the U.S. Supreme Court takes up the 1996 Federal Defense of Marriage Act which denies federal tax, pension, and other benefits to married same-sex couples. Defenders of the law say it appropriately defines marriage as a union between a man and a woman for purposes of federal benefits. Opponents say it violates equal protection. We analyze the arguments presented and the justices’ reactions.

Scott Shafer, reporter and host of KQED's The California Report
John Eastman, professor at Chapman University School of Law and chair of the National Organization for Marriage, an organization that supports Prop. 8
Kate Kendell, executive director of the National Center for Lesbian Rights
Vikram Amar, professor of law and associate dean for academic affairs at UC Davis School of Law

  • Kurt thialfad

    There are also immigration benefits involved. Can we expect to see a rash of green card marriages?

  • Kurt thialfad

    “Opponents say it violates equal protection”. Doesn’t a lgbt spouse get the same police service as a strait spouse? What is this concept of “protection”?

    • Chris OConnell

      It’s a great concept found in the 14th Amendment: “no state shall … deny to any person within its jurisdiction the equal protection of the laws.” Just as many of the Bill of Rights originally applied only to Congress and were extended to the states, the Equal Protection concept has been extended to the Federal government as well.

      There are whole shelves of books about this concept. Justice Ginsburg pretty much litigated herself to the Supreme Court by challenging a whole array of paternalistic laws that treated men and women differently.

      And so in this case, a woman’s spouse died and the deceased owes estate taxes. If the marriage was recognized by the federal government, i.e. man and woman instead of woman and woman, then she would not owe these taxes. So she claims she is being denied equal protection of the laws based on her sex.

      • Kurt thialfad

        Good points, Chris.

        She entered into a business contract, knowing full well that her potential estate tax liability would not be excused. After all, marriage is no more than a business contract – you need not produce offspring, nor be faithful, nor have sex, nor reside together in order to prevent your state-issued marriage license from being suspended. She should have entered into a different business contract, one that covered that particular eventuality.

        I like the idea of the government treating each citizen as an individual. Let people arrange their cohabitation arrangements, as they see fit.

        Incidentally, passage of the 14th amendment did not come easily. It was decidedly rejected by the confederate states, and could only be passed by the union states alone. Then ratification of the 14th was made a condition for the reentrance of each confederate state back into the union – a union of which they wanted no part to begin with.

  • Beth Grant DeRoos

    Listening to C-SPAN on Tuesday I was impressed with the questions and challenges the U S Supreme Court justices asked. Associate Justices Sotomayor, Kagan, Breyer and Kennedy seemed to challenged the anti Prop 8 attorneys on what rights don’t civil unions cover for same sex couples here in California.

    And even in regard to same sex couples and children the question seemed to be, didn’t they think about what effect being a same sex couple would have on any future children when they either sought to adopt or have via outside help? Or if it didn’t bother the same sex couples before why all of a sudden has it become a concern?

  • SkyRussell

    Would John Eastman explain how a heterosexual marriage that does not produce children (i.e., parents who adopt, rather than conceive) is considered legal and acceptable for “procreation,” when a homosexual marriage that also does not produce children (i.e., adopt) is considered illegal and unacceptable?

    • Ambulamus

      In a world that is already overpopulated, why is government trying to encourage procreation at all?

      • Kurt thialfad

        The only role the govt must play is in protecting the immature citizen children until they reach maturity and can take care of themselves.
        And certainly condoment of gay marriage is by no means encouragement of procreation.

  • Sanjiv

    If “all men are created equal” why do we create distinction on giving marriage benefits to same sex couple? Is it not related to the right to have sex with a partner of their own choice. Why do we interfere?

  • If the legal argument is that the ‘discrimination’ against same-sex marriages disallows them from getting certain benefits that ‘real’ marrieds get-then why can’t I, as a single person, make the argument that I am losing these benefits for the same reason-they are discriminating against my marital status?

  • Sanjiv

    If all men are created equal why do we not let same sex couple have the choice to have a partner of his/her choice? It’s different from the tradition and that’s why it seems odd, but it’s personal choice to choose a partner and same sex couple must get the same benefits as married couples.

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