Next spring, when the U.S. Supreme Court hears oral arguments in United States vs. Windsor, a case challenging the Defense of Marriage Act, one argument likely to be made by DOMA's supporters is that of "responsible procreation." The theory, which has been embraced by some courts and rejected by others, holds that federal marriage benefits are offered because the government has an interest in promoting stable families in which children are raised by their two biological parents. Because gay couples can't have children who are biologically related to both parents, the reasoning goes, they shouldn't receive any of these federal marital benefits. Because of DOMA, same-sex couples are not eligible for more than 1,000 federal marital rights. They cannot sponsor a non-citizen spouse to immigrate. They cannot file joint federal tax returns, and they are not entitled to family or medical leave to care for an ailing spouse. And, in the event of a spouse's death, they cannot collect spousal Social Security benefits and are not exempt from federal inheritance taxes. This year, in the Windsor case that will be decided by the Supreme Court, the U.S. 2nd Circuit Court of Appeals found DOMA unconstitutional. But the three-judge panel that heard the case was divided.
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