June 18, 2018
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DOMA is unconstitutional: Give gay couples all rewards of marriage

Cliff DesPeaux | Reuters
Cliff DesPeaux | Reuters
Johanna Flynn (left) and Lori Robb celebrate while walking down the steps of City Hall after getting married at Seattle City Hall in Seattle, Washington, Dec. 9, 2012. Washington made history last month as one of three U.S. states where marriage rights were extended to same-sex couples by popular vote, joining Maryland and Maine in passing ballot initiatives recognizing gay nuptials.

When Thea Clara Spyer died, she left behind her partner and love of 42 years, Edith Windsor. The loss in 2009 hit Windsor hard, and the New Yorker suffered a heart attack a month after her partner’s death. While still recovering and mourning, she learned she had to pay $363,053 in federal estate taxes on her inheritance. She was, essentially, being required to pay for the loss of her soul mate — because, even though the state of New York recognized their marriage, the federal government didn’t.

Who here thinks it’s not discriminatory for the federal government to look at married same-sex couples and deny them the 1,138 marital-related benefits, rights and privileges that flow from federal law? Under Section 3 of the Defense of Marriage Act, that’s exactly what the federal government is doing: prejudicing treatment based on couples’ sexual orientation. The small but weighty part of the law passed by Congress in 1996 violates the constitutional guarantee of equal protection by requiring the federal government to exclude legally married gay couples from the benefits and burdens accorded all other married people.

In October, Windsor won a key fight when the Second U.S. Circuit Court of Appeals ruled in her favor and upheld a previous district court decision that Section 3 of DOMA violates the Constitution. The U.S. Supreme Court will now examine the constitutionality of Section 3 when it hears the case of U.S. v. Windsor this term. Section 3 — which defines marriage as “only a legal union between one man and one woman as husband and wife” and defines spouse as only “a person of the opposite sex who is a husband or wife” — excludes a group of people from being able to take full advantage of the right to marry. Throw it out.

If the Supreme Court deems Section 3 unconstitutional, it will not require all states to allow same-sex couples to marry. But in states that have legalized same-sex marriage, such as Maine, it would require the federal government to respect their law. The federal government could then provide Social Security survivor benefits to a man who lost his gay partner, accept joint federal tax returns filed by married gay couples, provide pensions to the surviving spouses of federal employees, allow spouses to take family medical leave, grant military spouses support and benefits and, most importantly, stop treating gay married couples as unequal. The Supreme Court case does not challenge Section 2 of DOMA, which says states do not have to recognize same-sex marriages that are lawful in other states.

The government frequently draws lines to distinguish legal benefits for certain groups of people, but it needs a reason to do so. In 1996, states didn’t have protections for same-sex couples. Now, support has grown, and nine states plus the District of Columbia have legalized gay marriage. The court must evaluate why, in those states where gay marriage is now legal, the federal government is separating out married same-sex couples and treating them differently from all married couples.

It cannot use a defense that relies on morality, as DOMA supporters from the U.S. House Judiciary Committee did in 1996 when they said the law would protect “the traditional moral teachings reflected in heterosexual-only marriage laws.” In floor debate about DOMA, members of Congress called homosexuality “immoral,” “depraved” and “an attack upon God’s principles.” Morality, however, cannot be used as a justification for disliking a group of people and setting laws that oppress them. Cities, for example, cannot deny a permit for a health facility because they don’t like the idea of having people with illnesses nearby. This country promises equal protection. As shown by the 2003 Supreme Court decision in Lawrence v. Texas that consensual and private homosexual sex is protected by the Constitution, a traditional way of doing things is not necessarily grounds for continuing them.

Also, DOMA was, and continues to be, an unprecedented disruption of the separation of powers between state and federal governments. States issue marriage licenses, not the federal government. Throughout history, states have held a patchwork of laws surrounding marriage, such as those pertaining to common law marriage, and the federal government has accepted those differences. It is only now, through DOMA, that Congress claims interest in marriage, discriminates against a group of married people and then backs up the discrimination by saying the states made a mistake by marrying the couples in the first place.

Supporters of DOMA will continue to base their defense of the law on arguments about why it’s a bad idea to let same-sex couples marry.
But that is not the issue before the court. The question that must be argued is whether the federal government is justified in treating same-sex couples, who are committed in marriage in their own states, as single for the purposes of all federal laws and programs.
The answer, we think, is clear.

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