The last few weeks have not been good for DOMA. DOMA is the Defense of Marriage Act. Section 3 of DOMA, the part under attack, holds that:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United 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.
There are over 1,000 statutory provisions in the United States Code in which “benefits, rights and privileges” hinge on marital status. Here is the list if you want to check. One of them is the unlimited marital deduction in computing estate taxes. That was what Edith Windsor was in United States District Court about. Normally, in a case like this, Ms. Windsor would be up against Department of Justice attorneys. DOJ has, however, decided that Section 3 of DOMA is indefensible. The House of Representatives does not agree with DOJ on that and has charged the Bipartisan Legal Advisory Group (BLAG) with defending DOMA.
Ms. Windsor was in a committed relationship with Thea Spyer beginning in 1963. They lived in New York City, where they registered as domestic partners in 1993 as soon as that option became available. In 2007 they were married in Canada. Although New York did not allow same sex marriages to be performed until last year, it recognized marriages performed in other jurisdictions. This was an important point as BLAG tried to argue that Ms. Windsor had not been married under state law, which would mean she did not have standing to bring the suit.
The next argument was about what standard the Court should use for evaluating the constitutionality of DOMA – “strict scrutiny” or “reasonable basis”. In order to subject the law to “strict scrutiny”, the Court would have needed to determine that homosexuals are a “suspect class” (which is not what it sounds like). A suspect class is one that has:
a history of discrimination, an immutable characteristic upon which the classification is drawn, political powerlessness, and a lack of any relationship between the characteristic in question and the class’s ability to perform in or contribute to society.
The Court refused to rule on that issue, because they did not think DOMA passed on “reasonable basis”. For that it went to DOMA’s rather thin legislative history.
Contemporaneous with its enactment, Congress justified DOMA as: defending and nurturing the traditional institution of marriage; promoting heterosexuality; encouraging responsible procreation and childrearing; preserving scarce government resources; and defending traditional notions of morality. In its motion to dismiss and memorandum in opposition to summary judgment, BLAG advances some, but not all of these interests as rational bases for DOMA. It additionally asserts that Congress passed DOMA in the interests of caution, maintaining consistency in citizens’ eligibility for federal benefits, promoting a social understanding that marriage is related to childrearing, and providing children with two parents of the opposite sex.
The Court did not really see much of a reasonable basis there:
These are interests in the choices that heterosexual couples make: whether to get married, and whether and when to have children. Yet DOMA has no direct impact on heterosexual couples at all; therefore, its ability to deter those couples from having children outside of marriage, or to incentivize couples that are pregnant to get married, is remote, at best. It does not follow from the exclusion of one group from federal benefits (same-sex married persons) that another group of people (opposite-sex married couples) will be incentivized to take any action, whether that is marriage or procreation.
The Windsor decision comes on top of Dragovich v. Dept of Treasury, another District Court decision and a First Circuit decision, which I discussed here. I’m still wondering why conservatives are sticking with this particular fight. Who is or is not married has always been a state issue. Generally conservatives are concerned with the federal government overreaching. Here they are cheering it on. And losing.
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Originally published on Forbes.com on June 13th, 2012