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Supreme Court to review gay marriage cases this week
It’s not 1996 » “This is the gay moment,” says BYU prof.
First Published Nov 25 2012 12:15 pm • Last Updated Nov 26 2012 07:32 am

SAN FRANCISCO • Like a lot of newlyweds, Karen Golinski was eager to enjoy the financial fruits of marriage. Within weeks of her wedding, she applied to add her spouse to her employer-sponsored health care plan, a move that would save the couple thousands of dollars a year.

Her ordinarily routine request still is being debated more than four years later, and by the likes of former attorneys general, a slew of senators, the Obama administration and possibly this week, the U.S. Supreme Court.

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Because Golinski is married to another woman and works for the U.S. government, her claim for benefits has morphed into a multi-layered legal challenge to a 1996 law that prohibits the federal government from recognizing unions like hers.

The high court has scheduled a closed-door conference for Friday to review Golinski’s case and four others that also seek to overturn the Defense of Marriage Act overwhelmingly approved by Congress and signed by President Bill Clinton.

The purpose of the meeting is to decide which, if any, to put on the court’s schedule for arguments next year.

The outcome carries economic and social consequences for gay, lesbian and bisexual couples, who now are unable to access Social Security survivor benefits, file joint income taxes, inherit a deceased spouse’s pension or obtain family health insurance.

The other plaintiffs in the cases pending before the court include the state of Massachusetts, 13 couples and five widows and widowers.

"It’s pretty monumental and it’s an honor," said Golinski, a staff lawyer for the federal appeals court based in San Francisco who married her partner of 23 years, Amy Cunninghis, during the brief 2008 window when same-sex marriages were legal in California.

The federal trial courts that heard the cases all ruled the act violates the civil rights of legally married gays and lesbians. Two appellate courts agreed, making it highly likely the high court will agree to hear at least one of the appeals, Lambda Legal Executive Director Jon Davidson said.

"I don’t think we’ve ever had an occasion where the Supreme Court has had so many gay rights cases knocking at its door," said Davidson, whose gay legal advocacy group represents Golinski. "That in and of itself shows how far we’ve come."


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The Supreme Court also is scheduled to discuss Friday whether it should take two more long-simmering cases dealing with relationship recognition for same-sex couples.

One is an appeal of two lower court rulings that struck down California’s voter-approved ban on same-sex marriage. The other is a challenge to an Arizona law that made state employees in same-sex relationships ineligible for domestic partner benefits.

The last time the court confronted a gay rights case was in 2010, when the justices voted 5-4 to let stand lower court rulings holding that a California law school could deny recognition to a Christian student group that does not allow gay members.

The time before that was the court’s landmark 2003 ruling in Lawrence v. Texas, which declared state anti-sodomy laws to be an unconstitutional violation of personal privacy.

Brigham Young University law professor Lynn Wardle, who testified before Congress when lawmakers were considering the Defense of Marriage Act 16 years ago, said he still thinks the law passes constitutional muster.

"Congress has the power to define for itself domestic relationships, including defining relationships for purposes of federal programs," Wardle said.

At the same time, he said, the gay rights landscape has shifted radically since 1996, citing this month’s election of the first sitting president to declare support for same-sex marriage and four state ballot measures being decided in favor of gay rights activists.

"This is the gay moment, momentum is building," Wardle said. "The politics are profound, and politics influence what the court does."

For Golinski and Cunninghis, getting this far has been a long, sometimes frustrating and sometimes heartening journey.

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