Promising legal strategy for marriage equality

[KamaAina]

http://www.slate.com/id/2212893

On Tuesday, a gay rights organization filed a lawsuit in Boston whose import and importance are likely to be misunderstood. Filed on behalf of eight married same-sex couples and three people who survived their same-sex spouses, the complaint in Gill v. Office of Personnel Management challenges a congressional statute that refuses to recognize same-sex marriages under federal law. Much of the media coverage will probably focus on the gay rights angle of the case. But Gill also raises the broader issue of how far the federal government can intrude on state sovereignty—in this case, how states define marriage. It is worth distinguishing between the two takes on the case, because the lens one chooses could easily determine the result....

The consequences of this restrictive federal definition are far-reaching. A same-sex couple whose marriage is valid in Massachusetts cannot get spousal benefits under the federal Social Security program. If that couple consists of a citizen and a noncitizen, the citizen cannot sponsor the noncitizen spouse for citizenship. If that couple includes an employee of the federal government (the largest employer in the United States), the nonemployee spouse cannot receive family health insurance benefits, retirement benefits, or death benefits.

Gill will likely find its way to the U.S. Supreme Court because, unlike existing challenges to state bans on same-sex marriage, it raises a claim under the federal Constitution. If the case makes it to the nation's high court, some conservative justices will be confronted with a seeming tension. These justices tend to favor moving power from the federal government to the state government, as in Lopez. At the same time, they hardly favor expanding the right to marry by, for instance, making same-sex marriage a constitutional right....

One can argue over whether it's appropriate to keep the federal government out of marriage. But many of the justices on the court have already taken the position that family law is state law. If conservative jurists—on the Supreme Court or otherwise—care as much about states' rights as they claim to, this should be an easy case for them.