Driving down DOMA
This year, the Defense of Marriage Act must go
Published: Sunday, March 3, 2013
Updated: Sunday, March 3, 2013 17:03
The start of March marks the start of the countdown: The Defense of Marriage Act (DOMA) is heading to the Supreme Court.
On March 27, the nation’s highest court will take up United States v. Windsor, a case challenging Section 3 of DOMA. Here’s the background of the case: Edith Windsor, a resident of New York, married Thea Spyer, her partner of over 40 years, in Toronto in 2007. When Spyer passed away, Windsor was required to pay about $363,000 in federal estate taxes.
Why? Sec. 3 of DOMA states “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”
If federal law recognized Windsor’s marriage (even though New York State law currently does, and Section 2 of DOMA actually reserves powers to the states), she would have had to pay a grand total of zero dollars.
There are no defending qualities in the Defense of Marriage Act. It is a discriminatory and outdated law that hurts every party involved – from the LGBTQ community to businesses all across the country. And now the country has an opportunity to shut it down that it needs to act upon.
DOMA is not the only case the Supreme Court is taking up. It will also hear arguments on the constitutional challenge to Proposition 8, the 2008 California amendment that originally permitted same-sex marriages in the state but has since been overturned.
Marriage equality has all the momentum it needs. On Feb. 22, the Obama administration filed an amicus (or “friend-of-the-court”) brief asking the Supreme Court to strike down DOMA, arguing the law is unconstitutional because it violates “the fundamental guarantee of equal protection.” This past Thursday, the Department of Justice said in a written argument to the court that California’s law limiting marriage to a man and a woman is based on “impermissible prejudice.”
The White House has since started a domino effect. In addition to the dual White House briefs on DOMA and Prop. 8, on Friday, over 200 members of Congress filed a brief on U.S. v. Windsor in favor of Windsor. This follows a brief signed by dozens of prominent Republicans early last week submitted in support of striking down Prop. 8. That list includes Jon Huntsman Jr., who favored civil unions but opposed same-sex marriage in his 2012 run for president but just recently penned an article for The American Conservative entitled “Marriage Equality Is a Conservative Cause.”
One more for you: six former Federal Election Commission (FEC) commissioners filed a brief on Friday as well, stating DOMA creates barriers to free speech, and as former FEC chairman and lawyer Trevor Potter said in a statement, “Sexual orientation should never affect any American’s First Amendment right to free speech and association.”
A lot has changed since the days of Harvey Milk urging members of the community to, at last, step out of the closet. Gay and lesbian couples can marry in nine states, in addition to the District of Columbia. A few months back, Minnesota voted against a constitutional ban on same-sex marriage. President Obama, the first U.S. president to openly declare his support for marriage equality while in office, was re-elected to a second term.
According to a survey from the Center for American Progress (CAP) and Gay and Lesbian Advocates and Defenders (GLAD), 52 percent support marriage equality, and when asked specifically if “it is discrimination for the federal government to deny marriage protections and benefits to legally married same-sex couples,” 62 percent said yes. Now, this may not be the most unbiased of polls, but a Washington Post-ABC News poll from November mirrors the results of the CAP-GLAD poll with 51 percent in favor of marriage equality.
This is what progress looks like.
A lot hasn’t changed, however. DOMA has been around since 1996, and while it has been found unconstitutional in eight federal courts on charges including but not limited to bankruptcy, employee benefits, estate taxes and immigration, the law is still in place.
This is not just a fight about equal representation; it’s also a fight about equal opportunity. Sec. 3 allows state and federal authorities to deny benefits such as insurance for government workers, Social Security survivors’ benefits, active-duty military benefits and more than 1,100 other rights and perks given to heterosexual married couples.
In the last two weeks, politicians from all parties, hundreds of businesses, multiple large health insurance companies, advocates and citizens have all stepped up in support of DOMA’s repeal. It is a movement and a force that is only going to get bigger as the months pass. In its decision on DOMA and Prop. 8, the Supreme Court needs to realize one very important fact: a victory for marriage equality is not just a necessity at this point. It is a win for everyone and a much-needed push to begin to reverse years of discrimination.