By Melissa Gelbart
The Supreme Court will make a ruling on the constitutionality of the Defense of Marriage Act this spring, considering various cases nationwide in which judges found DOMA unconstitutional. The Court will have its choice of theories of illegality: one court found that the Act violates equal protection under the Due Process Clause of the Fifth Amendment, and “fails to pass constitutional muster under even the most deferential level of judicial scrutiny”; another judge applied intermediate scrutiny and found that DOMA was unconstitutional; and in another case, the former court found that DOMA violates the Tenth Amendment and falls outside Congress’ authority under the Spending Clause of the Constitution.
The principles of the Constitution and the prevailing notions of fairness, let alone equality, require that DOMA be declared unconstitutional and invalidated once and for all. DOMA blatantly discriminates on the basis of sexual preference without a conceivably legitimate “purpose.” There is no justification for this act.
The Obama administration filed a brief on February 21, 2013 urging the Supreme Court to strike down DOMA’s prohibition on recognition of same-sex couples’ marriages. The brief states that DOMA violates the constitutional guarantee of equal protection and argues for heightened scrutiny of the law because it singles out gay people.
The Supreme Court will be hard pressed not to end the inequities caused by the act once and for all.
Section three of DOMA bars federal recognition of the legal marriages of same-sex couples. Additionally, under DOMA, individual states do not legally have to acknowledge the relationships of gay and lesbian couples who were married in another state. Only the section that deals with federal recognition is being currently challenged in court.
Bill Clinton signed DOMA into law in September of 1996 because he had “long opposed governmental recognition of same-gender marriages, and this legislation is consistent with that position.”
How times change.
By 2008, Bill was singing a different tune, stating: “it’s a slight rewriting of history… to imply that somehow this was anti-gay when I had more openly gay people in my administration and did more for gay rights and tried to provide an opportunity for gays to serve in the military and did provide an opportunity for gays to serve in civilian positions involving national security that they had been previously been denied to serving in.”
To put it kindly, it was a stretch for Clinton to suggest that DOMA isn’t “anti-gay.” DOMA bars recognition of same-sex marriages by the federal government for income tax purposes, federal employee benefits, immigration and a myriad of other programs.
By disallowing federal recognition of same-sex employees in the workplace, DOMA penalizes such employees by creating economic inequalities. Same-sex marriage is currently legal in nine states plus the District of Columbia, and DOMA puts an unnecessary hardship on those business communities. Companies that want to extend equal benefits to their same-sex employees have to keep two sets of records, one for married employees with same-sex spouses, and a set for everyone else. Additionally, DOMA makes health care benefits for same-sex spouses and their families taxable, both to the employee and employer, resulting in significantly higher taxes for both parties.
Even the man who gave DOMA life stated in 2011 “in the 21st century, I believe New York’s welcome must include marriage equality.”
Repealing DOMA will not make marriage equality legal throughout the country. It will mean the federal government has to recognize the legal marriages of same-sex couples. Such a ruling will not require any state to legalize marriage equality that has not already done so.
Declaring DOMA unconstitutional won’t be drastic – it will just be getting with the times. Federal law already prohibits discrimination on the basis of gender and sexual orientation; Obama repealed Don’t Ask, Don’t Tell; and it is a federal offense to assault a person based on their sexual orientation or perceived gender identity.
The brief from the Department of Justice concedes: “DOMA could pass a so-called ‘rational basis’ test applied to laws that don’t veer into sensitive issues like race or gender.” But it shouldn’t. At this point in history, the only sensible option is to allow equality to be extended to include marriage with all its benefits. It is inconceivable to still permit discrimination when it comes to marriage and marital benefits on the basis of sexual orientation.