States await historic Supreme Court rulings on gay marriage - Omaha.com
Published Sunday, June 23, 2013 at 12:30 am / Updated at 9:37 am
DOMA // Proposition 8
States await historic Supreme Court rulings on gay marriage

It's hard to find anyone on either side of the same-sex marriage issue in Iowa and Nebraska who doesn't believe that history is in the making.

The question is just what kind of history and how much will be made when the U.S. Supreme Court hands down rulings on two pivotal same-sex marriage cases.

No one knows how the justices will rule. And though there are only two cases to be decided, the number of possible opinions seem countless.

For Iowans and Nebraskans, the impact of the cases will be felt differently, as both of these Midwestern states have taken a different side in the culture war.

Same-sex marriage is legal in Iowa and banned in Nebraska.

Few legal observers or advocates monitoring the cases believe the Supreme Court will take the revolutionary step of legalizing same-sex marriage in all 50 states. But no one believes that things will remain the same.

The better hope for same-sex marriage advocates appears to rest with a case that revolves around the Defense of Marriage Act, or DOMA. That law prohibits the federal government from recognizing same-sex marriages even if the couples are married in states where such marriages are legal.

If the law is overturned, legally married same-sex couples could qualify for the more than 1,000 federal benefits and rights currently enjoyed by other married couples.

“On a very practical level, we will no longer have to file taxes as a married couple in Iowa and as a single person on our federal tax returns,” said Donna Red Wing, executive director of One Iowa, a group dedicated to supporting same-sex marriage.

In Nebraska, those who fought to pass a same-sex marriage ban in 2000 fear that overturning DOMA would lead to a system in which a same-sex couple in Iowa could receive Social Security benefits but a same-sex couple in Nebraska could not.

Such a system would not stand for long, said Al Riskowski, executive director of the Nebraska Family Council, a group that supported the Nebraska ban. He said he fears that if that happens, the momentum will be with same-sex marriage proponents.

“I do have a deep concern that even if the U.S. Supreme Court cracks the door, even a little bit, to redefine marriage, it will have a large consequence,” he said.

Same-sex Marriage and the Supreme Court: A primer

Two cases: One state, one federal

Two cases are pending before the U.S. Supreme Court. One deals with whether same-sex couples married in states that allow same-sex unions should have access to federal benefits, such as Social Security. The other deals with the constitutionality of a state ban.

California ban: Hollingsworth v. Perry

The state case hails from California, where voters passed a state constitutional ban on same-sex marriage in 2008. A key issue in the case is whether such bans violate the U.S. Constitution's Equal Protection Clause by discriminating against a distinct group of people.

Defenders of the ban argued before the Supreme Court that it had nothing to do with discrimination. They said the ban was intended to protect the historical role of marriage as a stable institution whose primary purpose was procreation.

Opponents argued that it deprived same-sex couples of entering into one of society's most “cherished relationships” simply because some people hold an anti-gay bias.

Possible outcomes in California case

The Supreme Court could issue a sweeping decision overturning all state laws banning same-sex marriages in 36 states, including a 2000 ban passed in Nebraska.

If that happens, same-sex marriage would be allowed in all 50 states. But few think that's a real possibility.

Many legal experts believe the Supreme Court will skip the key questions of the case, ruling instead on technical grounds that supporters of the ban did not have “standing” to appeal the case. The California attorney general refused to defend the state's ban in court, forcing private citizens to take up the cause. There are serious legal questions about whether a group of citizens can represent the State of California in federal court.

The court could also craft a very narrow ruling that affects only California.

Rationale for ruling on technicality

Many observers are convinced the Supreme Court will dodge the big issue in this case based on the justices' questions during oral arguments.

Several justices asked whether it was too soon for the high court to wade into the same-sex marriage issue. And some of their questions centered on whether the matter should be left to individual states rather than made the law of the land by the Supreme Court.

Justice Samuel Alito even noted the newness of the issue.

“Traditional marriage has been around for thousands of years. Same-sex marriage is very new,” Alito said during oral arguments.

“There isn't a lot of data about its effect. And it may turn out to be a good thing; it may turn out not to be a good thing, as the supporters of Proposition 8 (the California ban) apparently believe. But you want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cellphones or the Internet? I mean we — we are not — we do not have the ability to see the future.”

Could the California case have an impact on Nebraska?

The only way the California decision could affect Nebraska is if the Supreme Court were to rule that the California ban is unconstitutional, which would mean all such bans violate the U.S. Constitution. If that were to happen, same-sex marriages would be legal across the nation, including Nebraska.

Could the California case have an impact on Iowa?

No. Iowa has allowed same-sex marriages since 2009, when its State Supreme Court ruled that a ban violated the Iowa Constitution.

Nothing in either of the two cases the U.S. Supreme Court will rule on would force any of the 12 states that allow same-sex marriages to stop.

The federal case: United States v. Windsor

This is the second case before the U.S. Supreme Court and the one that many same-sex activists are pinning their hopes on for a clear victory. Opponents, on the other hand, fear this ruling could open the “floodgates” to same-sex marriages being recognized across the nation, with or without a state's consent.

At issue is whether a same-sex couple married in one of the 12 states that allow such marriages, such as Iowa, would be recognized as a married couple by the federal government.

The person who brought the case, Edith Windsor, is a lesbian who had to pay $363,000 in estate taxes after the death of her wife, Thea Spyer, to whom she was legally married. She wouldn't have had to pay those taxes if her marriage had been recognized by the federal government.

The heart of the federal case

The case centers on a 1996 law called the Defense of Marriage Act, or DOMA. It was passed out of concern that if states began to approve gay marriages, the federal government would be forced to extend federal benefits to same-sex couples, including Social Security and veterans benefits.

The law states that whenever the word “marriage” appears in a federal statute — and it appears more than 1,100 times — it applies only to a marriage between a man and a woman.

The question before the Supreme Court is whether Congress overstepped its authority when it passed the law, because states, not the federal government, regulate marriage.

Historically, Congress has accepted the rights of states to dictate who can marry in their individual states. Also historically, Congress has allowed states to define marriage.

It may all be in the motive

Another issue in the case is motive.

The reason behind the law may prove pivotal in the U.S. Supreme Court's ruling. That's because any law that singles out a specific group of people cannot be done out of animus for that group. There has to be a rationale.

Supporters of the law argue that it was passed out of a need to ensure uniformity across the nation. Specifically, they argue that it would be unfair for a same-sex couple in Nebraska, where such a marriage is not allowed, to not have access to federal benefits while a same-sex couple in Iowa, where such marriage is legal, would get those benefits.

Others suggested that an underlying reason was some Congress members' disapproval of gay people.

In fact, during oral arguments, Supreme Court Justice Elena Kagan read from a congressional report that outlined one of the reasons for the law: “Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.”

Possible outcomes in the federal benefits law

If the Supreme Court rules DOMA unconstitutional, married couples in the 12 states that allow same-sex unions, including Iowa, would qualify for all federal benefits. In essence, they would be recognized as legally married couples in the eyes of the federal government.

The Supreme Court could also rule the law constitutional. If that happens, the status quo continues.

Finally, the justices could rule without addressing the merits of the case. They could decide that the House Republicans who defended the law in court did not have legal standing.

The impact on Iowa

If the high court overturns DOMA, same-sex couples in Iowa will have federal as well as state recognition. Almost immediately same-sex couples who were married and live in Iowa would be eligible for federal benefits — no longer having to file two tax returns, one as a married couple for Iowa and one as a single individual for the federal government.

The impact in Nebraska

Same-sex marriage would remain illegal in Nebraska, so same-sex couples in the state would not qualify for federal benefits.

But a big question would loom: Would same-sex couples who were married in Iowa but live in Nebraska qualify for federal benefits?

That would depend. Some federal agencies, such as the Internal Revenue Service and the Social Security Administration, determine whether a couple is legally married by looking at their place of residence. Others, including the military, determine marriage based on where the couple was married.

Legal experts have said that if DOMA is thrown out, President Barack Obama could require that federal agencies change their regulations to recognize all same-sex marriages conducted in states where those marriages are legal.

That means that a same-sex couple in Nebraska could marry in Iowa. Back in Nebraska, the marriages would be recognized by the federal government, though not by Nebraska.

Contact the writer: Robynn Tysver

robynn.tysver@owh.com    |   402-444-1309    |  

Robynn is Omaha.com's elections writer. She's covered presidential politics in Iowa's caucuses, and gubernatorial and Senate races in Nebraska.

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