The current Supreme Court case, Windsor vs. the U.S., in which the Supreme Court is being asked to decide if same-sex couples have a constitutional right to marry and to strike down the Defense of Marriage Act (hereafter “DOMA”) is not about “love,” as the media would have us to believe. I’ll confess that my own bias is that same-sex marriages shouldn’t be allowed and that the current law known as DOMA should be upheld. Even so, a lot of pundits from my side of the aisle politically, and I claim to be a conservative, seem to think that gay marriage is soon to become a fait accompli. But getting back to my original point about how this whole Supreme Court case is not about “love,” the real problem that brought this current gay marriage case before the Supreme Court in the first place had to do with the plaintiff owing $363,000 in estate taxes when her same-sex partner of some 40 years passed away. Apparently, the IRS wouldn’t budge when it came to making a common-sense adjustment in affording the plaintiff, Edith Windsor, the tax relief that even I would have conceded, she deserved.
Some background information might be helpful here. Edith Windsor claims to have lived with her beloved “Thea,” for 40 years, and was married to her in Canada in 2007. She lived in the state of New York, which recognizes same-sex marriage. It seems to me you could make a simple case that because Ms. Windsor resided in a state that recognized same-sex marriage, the federal government ought to follow suit in recognizing it. Practically everyone is aware that many employers today offer “domestic partner benefits” in the event of the death of a homosexual or “domestic” partner. Could it be, with the IRS’s refusal to grant Ms. Windsor her estate tax exemption on the same basis as a conventional husband-wife couple, that the IRS is in effect dictating a social reform here? One has to wonder if anyone would have ever heard about Edith Windsor and her Supreme Court case if the IRS had simply granted Ms. Windsor her estate tax exemption that an ordinary male-and-female couple would have been granted.
Some interesting questions about “marriage” are being raised by the Supreme Court justices while this case is being heard. At issue is how the term “marriage” will be defined, if the plaintiff should prevail in this case. Could marriage be defined as a joining of one man and four women together, for example? This was asked by Justice Gloria Sotomayor. Or how about some crazy people who might want to marry their pet? After all, some people have passed away, leaving their estate to their beloved cat or dog.
It seems as though the present case is really about the injustice of having been forced to raise $363,000 for estate taxes due to the death of a domestic partner. But now, it seems that gay activists want to use this injustice to change the cultural direction of the country by insisting that churches be obligated to perform wedding ceremonies for them. This really should have been a Tax Court case. To illustrate a little absurdity here to make my point, what if someone wants to claim under a liberalized Supreme Court definition of “marriage,” that an already conventionally married man-and-wife couple now decide to marry their pet dog or cat, so that if the husband or wife should die, they can avoid the estate tax?
The simple way to deal with this, as one of the Supreme Court justices have hinted, would be to just not accept the case. Let the states deal with this. Let public opinion persuade the IRS, possibly through passage of a new law, to include an exemption for estate tax obligations to extend to two people categorized as domestic partners like Edith and Thea clearly were, and not use the present court case to decide what a church can or can’t do, in the case of these same-sex marriages. A number of prognosticators, myself included, seem to think that the present court case is going to end up like the abortion case, Roe v. Wade, did in 1973. There’s no constitutional amendment anywhere guaranteeing a woman the right to an abortion, and yet Roe v. Wade is widely accepted as the law of the land, even though it is nothing more than a Supreme Court decision. Likewise, the Windsor vs. the U.S. case appears to be headed for approval by the U.S. Supreme Court, overturning the present DOMA law. Even if, by some unexpected turn of events, it gets delayed for now, it will likely be sanctioned by the Supreme Court at some point