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Will other same-sex marriage bans fall?

June 26, 2013

Lawyers wanting to challenge laws in Louisiana and 34 other states that ban same-sex marriage are likely to be looking at the U.S. Supreme Court ruling on the Defense of Marriage Act for legal ammunition, Tulane Law Professor Stephen Griffin said Wednesday (June 26).

“Other laws discriminatory toward gays could come under renewed pressure” as well, Griffin said during an interview with New Orleans’ Fox 8 News.

In a case from New York, U.S. v. Windsor, the justices said DOMA violates the 5th Amendment’s equal protection guarantee. Justice Anthony Kennedy wrote the opinion for the 5-4 majority, saying DOMA wrongly disadvantaged couples to whom some states had extended marital protections.

In a separate case, Hollingsworth v. Perry, a different 5-4 majority said that private individuals couldn’t use the courts to reinstate California’s ban on same-sex marriage when state officials chose not to defend the law, known as Proposition 8.

Now, same-sex marriage is legal in 13 states and the District of Columbia.

DOMA said that same-sex spouses in states where gay marriage is legal weren’t entitled to the same federal benefits as male-female spouses. More than 1,000 federal provisions were at issue, including Social Security, income tax, bankruptcy and veteran’s benefits.

Now, for instance, couples in states with legal same-sex marriage could file joint income tax returns.

“Those couples are just as married in the light of federal law as heterosexual couples,” Griffin said.

The ruling means a $363,000 tax refund for New York widow Edith Windsor. When her spouse died and left Windsor her estate, DOMA prevented Windsor from getting an estate tax exemption. Her lawsuit for a refund led to Wednesday’s ruling.

Griffin said the question now is whether Kennedy had opened the door to challenges to state bans on same-sex marriage. “I think he did open the door at least a little,” Griffin said.

 
   


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