Striking Down the Offense Against Marriage Act

      The federal Defense of Marriage Act (DOMA) is all but dead. Seven federal courts have ruled it unconstitutional, and Supreme Court watchers have a growing consensus that at least five justices will agree before the court’s current term ends next June.
      Yet Congress passed this anti-gay marriage law by overwhelming, bipartisan majorities in 1996, and a Democratic president who had support from many gay leaders and gay rights advocates signed it into law. Back then, opponents raised constitutional doubts mainly about the provision — section 2 — that no state was required to recognize same-sex marriages from another state. Some of the opponents said merely that the provision was unnecessary since states have historically had the discretion to determine whether to recognize marriages from other states.
      Far less attention was paid to the provision, section 3, that defined marriage for purposes of federal law as the union of one man and one woman. The federal government had never before established a national definition for marriage, but to many people it seemed unsurprising that the government would have that authority. And the provision seemed to have no immediate impact since no state at the time granted marriage rights to gay or lesbian couples.
      Things are different today. The harm that the law imposes is now tangible and concrete. Thousands of same-sex couples are legally married in the United States. Six states and the District of Columbia allow same-sex couples to marry; so do Canada, the United States’ neighbor to the north, and nine other countries at latest count. At least one state, Maryland, recognizes same-sex marriages from other jurisdictions; and Maryland is one of three states — Maine and Washington are the others — that have measures on the Nov. 6 ballot to legalize same-sex marriages.
      These legal developments unmask the federal law for what it is: not a defense of marriage, but an offense against marriage. Congress approved the law in 1996 for reasons that seemed self-evident: preserving traditional marriages, protecting kids and promoting morality. Today, the law is recognized as denying legally married gay and lesbian couples benefits — financial and otherwise — matter-of-factly extended to opposite-sex couples living in the same state, even on the same block.
      Edith Windsor, the DOMA victim in the most recent federal court decision, was hit with a $363,000 estate tax bill after her wife, Thea Spyer, died in 2009. Windsor and Spyer, New York residents, had married in Canada two years earlier; New York recognized same-sex marriages from other jurisdictions even before the state legislature voted to approve gay marriage in June 2011.
      In opposite-sex marriages, a spouse’s estate passes to his or her surviving spouse without incurring federal tax liability. But under DOMA, Windsor was not eligible for that same, uncontroversial tax benefit. The plaintiffs in other DOMA challenges have suffered similar, if less dramatic, financial disadvantages. The widower of former congressman Gerry Studds was denied Social Security survivors benefits. Several current or former federal employees have been prevented from extending health insurance or retirement to their spouses.
      In ruling for Windsor last week [Oct. 18], the New York-based Second U.S. Circuit Court of Appeals held that laws that single gays and lesbians out for unfavorable treatment are subject to heightened constitutional scrutiny. The majority in the 2-1 decision cited the history of discrimination against gays and their lack of political power to prevent legally sanctioned discrimination.
      Having raised the bar a bit, the court then rejected all of the rationales offered by lawyers for House Republicans to uphold the law. (The Obama administration no longer defends the law.) The court said the law did not help maintain a uniform definition of marriage, protect the federal treasury, preserve a traditional understanding of marriage or encourage responsible procreation.
      The case, Windsor v. United States, is viewed as the best of four cases pending before the Supreme Court for the justices to use to resolve the issue. One reason: Justice Elena Kagan, the former solicitor general, may be disqualified from the other cases, but not from this one. The justices have the cases ready for conference early next month. The Second Circuit must have been aware of that schedule as it rushed its decision out only three weeks after argument.
      When the case is argued, the challengers will certainly face combative questions from Justice Antonin Scalia. The court’s guardian of constitutional originalism will undoubtedly contend that a provision adopted in 1868 — the Fourteenth Amendment’s Equal Protection Clause — was not intended or understood to say anything about gay marriage.
      Scalia will be right on that point, but irrelevant. Despite Scalia’s protests, the Constitution is in fact a living document for an ever-changing country and its people. None of the Fourteenth Amendment’s framers would have understood it to prohibit discrimination on the basis of sex, but the Supreme Court decisions from the 1970s applying the Equal Protection Clause for that purpose are now well established.
      The pivotal vote in the DOMA case likely rests with Justice Anthony M. Kennedy. When he led the court in striking down anti-sodomy laws in 2003, Kennedy made clear his view that the Constitution protects gay and straight people alike. “As the Constitution endures,” Kennedy wrote, “persons in every generation can invoke its principles in their search for greater freedom.” Weighed against those principles, DOMA seems doomed.