There has been extensive discussions about how the case of United States v. Windsor., the case challenging the Defense of Marriage Act (DOMA), will be decided.
After yesterday’s oral arguments, virtually every court watcher believes DOMA is in serious trouble, after most of the justices showed severe doubts about either its legality under equal protection grounds, or under federalism grounds via the 10th amendment.
Of course, we know how precise predictions like this are. Using oral arguments, I and others were sure, beyond a doubt, that Obamacare would also be declared unconstitutional. Of course we all know how that worked out. Chief Justice Roberts declared the mandate legal because it wasn’t a mandate…but a tax.
And therein may be the most hilarious segue of them all. Because when you look at the Windsor case, what is at the heart of it?
Edith Windsor married her longtime partner Thea Spyer in 2007. When Speyer died in 2009, she left her estate to Windsor, who got hit with a $360,000 tax bill. Because of DOMA’s definition of marriage as “a legal union between one man and one woman,” federal tax benefits that shield married couples from the estate tax didn’t apply.
So ultimately, this case may not be about equal rights at all. It may end up being purely about…taxation.
Now, do I think Roberts et al are going to consider this based on taxation grounds alone? No. Of course not. Just listen to the oral arguments! How could this be purely a case regarding the ability of the federal government to tax individuals?
I mean, that would be ridiculous.
Let hilarity ensue.
This was crossposted at Neoavatara.