(Corrects year Thea Clara Spyer died to 2009, not 2007, in
* Court to review U.S. law denying federal benefits
* Will also review California gay marriage ban
* More than 30 states ban same-sex marriage
By Terry Baynes
WASHINGTON, Dec 7 The U.S. Supreme Court stepped
into the gay marriage debate for the first time on Friday by
agreeing to review two challenges to federal and state laws that
define marriage as a union between a man and a woman.
The high court agreed to review a case against a federal law
that denies married same-sex couples the federal benefits
heterosexual couples receive. It also unexpectedly took up a
challenge to California's ban on gay marriage, known as
Proposition 8, which voters narrowly approved in 2008.
Same-sex marriage is a politically charged issue in a
country where 31 of the 50 states have passed constitutional
amendments banning it, while Washington, D.C., and nine states
have legalized it, three of them on Election Day last month.
The tide of public opinion has been shifting in favor of
allowing same-sex marriage. In May, President Barack Obama
became the first U.S. president to say he believed same-sex
couples should be allowed to get married. A Pew Research Center
survey from October found 49 percent of Americans favored
allowing gay marriage, with 40 percent opposed.
Yet even where it is legal, married same-sex couples do not
qualify for a host of federal benefits because the 1996 Defense
of Marriage Act, or DOMA, passed by Congress, recognizes only
marriages between a man and a woman.
Gays and lesbians married under state laws have filed suits
challenging their denial of such benefits as Social Security
survivor payments and the right to file joint federal tax
returns. They argue the provision, known as Section 3, violates
equal protection provisions of the U.S. Constitution.
Meeting in private on Friday at their last weekly conference
before the court's holiday recess, the justices considered
requests to review seven cases dealing with same-sex
relationships. Five of them were challenges to the federal
marriage law, one to California's gay marriage ban and another
to an Arizona law against domestic partner benefits.
The court had been widely expected to take up at least one
of the challenges to the federal marriage law, given that two
federal appeals courts had found the law unconstitutional. Less
clear was what the court would do with the California gay
"Taking both a states' rights case like Prop 8, and a case
involving Congress' authority in the DOMA ... suggests that the
court is ready to take on the entire issue, not just piecemeal
it," said Andrew Pugno, a lawyer for the individuals defending
California's gay marriage ban.
DEFENSE OF MARRIAGE ACT
In an "orders list" released after its meeting, the court
granted an a ppeal in the case of Edith Windsor, an 83-year-old
lesbian who challenged her denial of federal tax benefits under
the Defense of Marriage Act.
Windsor's wife, Thea Clara Spyer, died in 2009, but because
the same-sex marriage was not recognized under federal law,
Windsor had to pay more than $363,000 in federal estate taxes on
assets she inherited from Spyer, according to her lawsuit.
Reached by phone on Friday, Windsor said it was "thrilling"
that the justices decided to take her case. She said winning
would be a "big boon for civil rights."
Federal courts of appeal in New York and Boston had found
unconstitutional the provision that denies federal recognition
and benefits to married same-sex couples.
The Obama administration said last year it viewed the law as
unconstitutional and would no longer defend it in court. A group
appointed by the Republican majority in the U.S. House of
Representatives has backed the law, asking the justices to
In its order on Friday, the Supreme Court said it wanted to
consider whether the congressional group had a right to defend
the law, given the Obama administration's conclusion that the
law is unconstitutional.
Both sides in the debate welcomed the court's decision to
take up the issue.
Civil rights activists said it was another breakthrough in
their bid for equal rights.
"It is time for the Supreme Court to strike down this
unconstitutional statute once and for all," said Donna
Lieberman, executive director of the New York Civil Liberties
Union, which represents Windsor.
Opponents hope the justices will reverse lower-court rulings
and uphold what they regard as U.S. traditional social policy.
"We believe the U.S. Supreme Court will overturn this
exercise of judicial activism and stop federal judges from
legislating from the bench on the definition of marriage," said
John Eastman of the National Organization for Marriage.
If the court invalidates the law, states might still be
allowed to legalize or deny same-sex marriages on their own
Another section of the law, which is not being challenged,
says that states do not have to give legal status to same-sex
marriages performed in other states that permit such unions.
Less expected was the court's decision to review
California's ban on same-sex marriage. The California case,
Hollingsworth v. Perry, had sought marriage equality for gays
and lesbians under the U.S. Constitution.
The 9th U.S. Circuit Court of Appeals in February found the
gay marriage ban unconstitutional. But it ruled narrowly in a
way that only affected California and not the rest of the
country, finding the state could not take away the right to
same-sex marriage after previously allowing it.
No other state that allowed gay marriage has later banned
The court could follow the 9th Circuit's decision and also
rule narrowly, allowing same-sex marriage only in California but
not the rest of the country. It could also recognize a right to
In its order list, the court said it wanted to consider
whether gay marriage opponents in the case had standing to
defend the law after state officials declined to do so.
If the court finds the private opponents do not have a right
to defend the law, gay marriage would become legal in
California. But in doing so, the court would not address the
broader constitutional rights at stake.
"On the one hand, we want our clients and citizens of
California to have marriage equality immediately. On the other
hand, this is an ideal case for the Supreme Court to decide this
critical civil rights issue," said David Boies, a lawyer for the
gay marriage advocates.
Lawyers for Indiana and 14 other states had filed a brief in
support of Proposition 8, urging the justices to reverse the 9th
Circuit's decision and uphold the law, which they say promotes
responsible procreation and the ideal family life for children.
California Attorney General Kamala Harris welcomed the
court's decision to take the case as a step toward equality
under the law.
The Supreme Court took no action on an appeal from the state
of Arizona, asking the court to revive a state law version of
DOMA. The Arizona law, which the 9th Circuit invalidated,
eliminated domestic partner healthcare benefits for gay and
lesbian state employees.
Same-sex couples in Arizona cannot marry, under that state's
constitutional ban passed in 2008.
The court is expected to hear arguments as soon as March,
with decisions expected by the end of June.
(Additional reporting by Peter Henderson in San Francisco and
Edith Honan in New York; Editing by Kevin Drawbaugh, Xavier
Briand and Peter Cooney)