Gay marriage raises questions about legal rights, constitution

However the Supreme Court decides on the two same-sex marriage cases that were argued recently, the issue will not be resolved forevermore.

In one case, United States v. Windsor, the Court must rule whether the provision defining marriage between a man and woman in the Defense of Marriage Act is constitutional.

Signed into law in 1996, the Defense of Marriage Act explicitly does not allow the recognition of same-sex marriages on the federal level, which affects people when their marital status matters to the federal government. Taxes, inheritances, insurance name it and it’s a federal issue.

The case came about when Edie Windsor, an 83-year-old New York woman, sued the federal government over a $363,000 estate tax bill when her partner died in 2009.

Not being married, while having a committed partner, does affect one’s everyday life, says Rebecca, a local woman who has been with her partner over a decade.

“We’re able to be on her benefits, we’re treated like a married couple through her company,” Rebecca said. “If she was to pass away tomorrow, her parents could come and take everything and decide what to do with her body. If she wants to take our son to the doctor, I have to write up a long sheet to say, ‘Please, let her make decisions.’ “

The couple had a wedding ceremony in 2006, yet it has no legal standing, Rebecca said.

“Basically we have to live like we’re friends,” she said. “To make sure we’re covered or protected we have to lawyer up. We want the same protections straight people have it’s not so I can have a wedding cake or a wedding dress. I already had that.”

The other case, Hollingworth v. Perry, will decide if California’s Proposition 8, which defines marriage as between a man and woman, can stand.

The decisions on the two cases will each affect the other, says Williamsport attorney Clifford Rieders, who is admitted to the Supreme Court.

“Should there be same-sex marriage or not that’s not really the issue,” Rieders said. “The question is, should the federal constitution prohibit a state from defining marriage as between a man or a woman or permitting it even?

“The conservatives’ argument is that you cannot interfere with state decisions when it comes to marriage and family,” he continued. “That means that, when the U.S. passes a law, like the Defense of Marriage Act, it interferes with the right of states to determine who can marry.”

The issues in these two cases are basically unprecedented before the Court, because sexual preference has never been defined as a factor in the case law, Rieders said.

“There’s nothing in the U.S. Constitution that can reasonably be read as providing a constitutional right for same-sex couples to marriage, and nothing in the constitution that would prohibit a state from saying who can marry.

“There’s no case that’s ever found the equal-protection clause (in the Fifth and Fourteenth Amendments) protects same-sex relationships,” Rieders continued. “It has been interpreted to protect race, color, creed, and nationality. If the Court wants to say we want to rewrite Constitution to include sexual preference they can, but it would be a change.”

Rieders sees the justices taking a moderate approach in their decision on the two cases.

“I see the Court punting this to the states for a while,” he said. “My guess is they’ll strike down the Defense of Marriage Act because it interferes with states’ rights and they will not say a state cannot prohibit same-sex marriage.”