|Court to Take Up Same-Sex Marriage|
|By ARIANE DE VOGUE (@Arianedevogue) and TERRY MORAN (@TerryMoran)||Dec 6, 2012, 10:30 PM|
The Supreme Court today decided to take up two major cases regarding gay marriage, one of which could ultimately lead the court to decide whether there is a fundamental right to same-sex marriage.
The justices announced that the court would hear a challenge to Proposition 8, the controversial California ballot initiative that passed in 2008 that restricted marriage to opposite-sex couples, as well as a challenge to a federal law that defines marriage as between a man and a woman.
A divided three-judge panel of the 9th Circuit Court of Appeals struck down "Prop 8" in February, ruling that it "serves no purpose , and has no effect, other than to lessen the status and human dignity of gays and lesbians in California and to officially reclassify their relationship and families as inferior to those of opposite-sex couples."
It was a narrow ruling, specific to California and its history with Prop 8. The court did not reach the broader question of whether there was a fundamental right to gay marriage.
Supporters of Prop 8 are asking the Supreme Court to hear an appeal of that ruling. Gay marriages have been put on hold in California until the Supreme Court decides the issue. The cases will likely be argued in March.
Opponents of Prop 8 are represented by David Boies and Theodore Olson, two lawyers who argued on opposite sides in the historic Bush v. Gore case that resulted in Bush's election as president.
They contend in court briefs that the question about whether the states might discriminate against gay men and lesbians in the provision of marriage licenses could be the "defining civil rights issue of our time."
The court will also hear a challenge to a key section of a federal law, the Defense of Marriage Act (DOMA), that defines marriage as between a man and a woman. At issue in this case is not whether there is a fundamental right to gay marriage, because the same-sex couples are legally married in states that allow gay marriage, but that the gay couples alone are denied federal benefits such as the Social Security survivor assistance.
There were eight DOMA petitions filed with the court. One involved Edith Windsor, who, in 2007, married Thea Spyer, her partner of more than 40 years. The couple were married in Canada, but resided in New York until Spyer died in 2009.
Windsor was forced to pay $363,000 in federal estate taxes. She applied for a refund believing she was entitled to a marital deduction, but she was denied the claim on the grounds that she was not a "spouse" within the meaning of DOMA.
In briefs filed with the court, Solicitor General Donald B. Verrilli Jr. writes, "Although Section 3 of DOMA does not purport to invalidate same-sex marriages in those States that permit them it excludes marriage from recognition for purposes of more than 1,000 federal statutes and programs whose administration turns in part on individuals' marital status."
Recent ABC News-Washington Post polls say that 51 percent of Americans support gay marriage, which is legal in nine states and the District of Columbia.
ABC News' Sarah Parnass contributed to this report.