US marriage law unconstitutional: Court

2012-10-19 11:59
Phyllis Siegel, aged 77, right, and Connie Kopelov, aged 85, both of New York, embrace after becoming the first same-sex couple to get married at the Manhattan City Clerk's office in New York. (File, AP)

Phyllis Siegel, aged 77, right, and Connie Kopelov, aged 85, both of New York, embrace after becoming the first same-sex couple to get married at the Manhattan City Clerk's office in New York. (File, AP)

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New York — Saying the gay population has "suffered a history of discrimination", an appeals court in New York ruled on Thursday that a US law defining marriage as between a man and a woman is unconstitutional. The national fight over gay marriage is expected to reach the country's top court soon.

The 2nd US Circuit Court of Appeals found no reason the Defense of Marriage Act could be used to deny benefits to married gay couples. The law denies federal recognition of same-sex marriages and affirms the right of states to refuse to recognise such marriages.

The 2-1 decision came after a woman sued the government, saying the law required her to pay more than $363 000 in federal estate tax after her partner of 44 years died.

In writing the majority opinion, Judge Dennis Jacobs said discrimination against gays should be scrutinised by the courts just as discrimination against women was scrutinised in the 1970s.

"The question is not whether homosexuals have achieved political successes over the years; they clearly have. The question is whether they have the strength to politically protect themselves from wrongful discrimination," said Jacobs, who was appointed to the bench in 1992 by President George HW Bush.

Judge Chester J Straub dissented, saying that if the government was to change its understanding of marriage, "I believe it is for the American people to do so."

Watershed moment

The Defence of Marriage Act was passed by bipartisan majorities in both houses of Congress and signed by President Bill Clinton after it appeared in 1993 that Hawaii might legalise gay marriage.

Since then, many states have banned gay marriage but several have approved it, including Massachusetts and New York.

The government defended the federal law until President Barack Obama and Attorney General Eric Holder in early 2011 directed attorneys to stop doing so.

James Esseks, an attorney for the American Civil Liberties Union, called Thursday's ruling "a watershed moment in the legal movement for lesbian and gay rights".

"It's fabulous news for same-sex couples in New York and other states," he said.

Lawyer Paul Clement, who had argued in support of the law on behalf of the Bipartisan Legal Advisory Group of the US House of Representatives, was traveling and did not immediately return a message seeking comment.

'Off base'

Brian Brown, president of the National Organisation for Marriage, which filed arguments with the appeals court before the ruling, called the decision "yet another example of judicial activism and elite judges imposing their views on the American people".

He urged the Supreme Court to take up the case, saying: "The American people are entitled to a definitive ruling in support of marriage as the union of one man and one woman, as 32 states have determined through popular vote."

Dale Schowengerdt, an attorney with the Scottsdale, Arizona-based Alliance Defending Freedom, called the ruling "off base" and predicted the Supreme Court will disagree with it.

Edith Windsor sued the government in November 2010 because she was told to pay $363 053 in federal estate tax after her partner of 44 years, Thea Spyer, died in 2009. They had married in Canada in 2007.

"This law violated the fundamental American principle of fairness that we all cherish," Windsor said in a statement. "I know Thea would have been so proud to see how far we have come in our fight to be treated with dignity."

Read more on:    us  |  gay rights

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