December 11, 2012

COMMENTARY: Supreme Court should not ignore historic shift

Jonathan Capehart

The long-awaited announcement has finally come. The Supreme Court of the United States will take up two cases involving same-sex marriage. Thus we could be in the final days of the discrimination wrought by the so-called Defense of Marriage Act.

The court will hear a challenge to the 9th Circuit Court of Appeals' decision that California's Proposition 8 is unconstitutional. The 2008 ballot measure made same-sex marriage illegal there through an amendment to the state's constitution.

The court will also hear Windsor v. United States. Edith Windsor and Thea Spyer of New York had been together 42 years when they legally married in Canada in 2007. When Spyer died in 2009, Windsor had to pay the Internal Revenue Service $363,053 in estate taxes because DOMA prevents the IRS from recognizing her as a surviving spouse.

DOMA is doomed.

The main reason for my optimism is based in the fact that the Windsor case is not a quest for a special right of any kind. Windsor was legally married.

What she wants -- what all similarly suited same-sex couples and those who aspire to marriage want for themselves -- is to have her marriage recognized by the federal government and to enjoy the rights and responsibilities that go with that.

As The Washington Post reports, however, the Windsor case "would not require an answer to the broader constitutional question of whether (same-sex couples) must be allowed to marry."

On Election Day, the people of Maine, Maryland and Washington states said yes to marriage equality. The people of Minnesota beat back an effort to ban same-sex marriage through their state constitution.

While the rights of a minority should never be up to a popular vote, that voters in those states said "I do" to allowing gay and lesbian couples marry is a historic shift that should not be ignored by the Supreme Court.

Arguments will be heard in March. A decision is expected in June.

Jonathan Capehart is a columnist for The Washington Post.

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