Traverse City Record-Eagle

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October 24, 2012

Another View: Election to shape same-sex couple issue

The U.S. Circuit Court of Appeals that oversees New York, Connecticut and Vermont Thursday became the second circuit to declare that the federal Defense of Marriage Act is unconstitutional. The 2nd Circuit panel's 2-1 decision sets the stage for a Supreme Court showdown over same-sex marriage and serves as a timely reminder that whichever presidential candidate is elected Nov. 6 will likely shape federal jurisprudence on that issue and many others for generations to come.

The Defense of Marriage Act (DOMA) bars federal recognition of same-sex marriages and authorizes states to refuse to recognize such marriages. It was adopted by Congress and signed by then-President Bill Clinton in 1996. In the nine years since, Michigan and many other states have adopted laws or constitutional amendments that ban gay marriage. But eight states, including New York, have passed laws that recognize such unions and extend spousal rights to same-sex spouses.

In its ruling striking down DOMA, the 2nd Circuit panel said the law's distinction between same-sex spouses and heterosexual ones "was not substantially related to an important government interest" and thus violated the equal protection clause of the Constitution.

The immediate beneficiary of the 2nd Circuit's decision is 83-year-old Edith Windsor, who challenged the law in November 2010 after the death of her longtime partner, Thea Spyer. The two women, who had been together for 44 years, were married in Canada in 2007.

Though New York recognized her marriage, Windsor was not able to claim a deduction for a federal estate tax that is available for the surviving partner of a marriage between heterosexuals. ...

Thursday's ruling targeted the same section of the law that a 1st Circuit Court of Appeals panel rejected earlier this year — a section that restricts the definition of "marriage" to a legal union between one man and one woman ...

But the 2nd Circuit panel went further than its Boston-based counterpart, opining that laws that discriminate against gay citizens should be presumed unconstitutional in the absence of evidence they have been narrowly tailored to achieve an important governmental purpose.

This newspaper has a long history of opposing legislation that sanctions discrimination against minorities. The 2nd Circuit's conclusion that DOMA violates the Constitution's mandate that all citizens enjoy the same legal protection is well-reasoned, and we hope that the Supreme Court embraces it when it confronts the issue ...

Whether a majority of Supreme Court justices share the 2nd Circuit's resolve to uphold Edith Windsor's rights ... may depend on whether the court's next member is nominated by Barack Obama or Mitt Romney. ...

-- Detroit Free Press

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