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Windsor ruling leaves many questions unanswered on same-sex marriage

September 18, 2013

The U.S. Supreme Court’s June 26 ruling striking down the federal Defense of Marriage Act looked like a victory for marriage equality but left some dissatisfaction, along with many unanswered questions, Tulane Law School professors said during a Constitution Day panel discussion Tuesday.

“It still feels like a victory that’s half a loaf,” Professor Robert Westley told an audience of more than 120 people.

A key problem with Justice Anthony Kennedy’s majority opinion, he said, is that it referred to concepts of dignity but still allowed states to determine whether to recognize same-sex marriages.

“From Justice Kennedy’s standpoint, the law confers dignity or it can take it away,” Westley said.

The court’s DOMA ruling in the case of U.S. v. Windsor involved a claim by 84-year-old New York resident Edith Windsor, who sued to get back the $363,000 in estate taxes she had to pay after inheriting the property of her spouse, Thea Spyer, who died in 2009. Windsor argued that she should be treated like a heterosexual spouse, who would not have been taxed.

Professor Catherine Hancock recalled her experience of being in the Supreme Court lawyers lounge on March 27 when Windsor was argued and said that listening to the oral arguments on the scene was “just extraordinary.”

Professor Saru Matambanadzo called Justice Kennedy’s opinion “mushy” and said it “feels like separate and unequal” because it treats marriages between same-sex couples differently from marriages between opposite-sex couples.

But, she added, “It’s a starting point for a destination that’s not inevitable.”

The Windsor ruling means that same-sex married couples who reside in states where marriage equality is recognized are eligible for the same federal benefits as heterosexual married couples. But for same-sex married couples who live in states like Louisiana that ban gay marriage, eligibility for federal benefits may not be available, depending on a federal agency’s regulations.

Also, a myriad of other problems are likely to arise. For instance, Tulane Vice Dean Ron Scalise, who moderated the panel, raised the issue of where same-sex couples are supposed to get a divorce if they married in a state that recognized their union but moved to a state that does not.

“I think we’re headed for a constitutional crisis,” Matambanadzo said. “But the flip side of crisis is opportunity.”



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