Why the Defense of Marriage Act (DOMA) is headed for the ash heap of history.
It’s a shame Edith Windsor’s story didn’t get quite as much attention last week as Mitt Romney’s inelegant remark about women in binders.
In case you missed it, Edith is the 83-year-old widow who is challenging the Defense of Marriage Act (DOMA) because it has cost her, to date, $363,000 (not including attorney fees) in federal estate tax refunds that she would have been eligible for had she been married to a man.
Last Thursday, a three-judge panel of the Second Circuit U.S. Court of Appeals, ruled in Edith’s favor. It upheld a federal district court judge’s decision that Section 3 of DOMA is unconstitutional because it deprives Edith of the equal protection to which she is entitled as an American citizen and resident of New York. This is the second time a federal appellate court has found Section 3 of DOMA unconstitutional, the first was in May of this year when the First Circuit upheld a district court ruling in favor of seven same-sex couples from Massachusetts.
DOMA is a short statute that does a couple things. The first is to exempt states, tribes and territories from having to give any “effect” or “right” or “claim” to a same-sex marriage sanctioned by the laws of any other jurisdiction. The second—injected in Section 3—is to limit the definition of marriage to a man and a woman, for the purposes of interpreting federal rules, regulations and “interpretations.” Thus, Section 3 is that part of the law that was aimed like a steel-toed boot at Edith Windsor’s ribs. It wasn’t put there to “defend” anybody’s marriage. It was put there to inflict pain upon gay couples.
Section 3 is failing in the federal courts because there is no good answer to the question for why the federal government has a compelling interest in discriminating against gay couples. Nor is there are good answer to the question of how discriminating against gay couples “defends” straight marriages.
As with the constitutional battle over “Don’t Ask, Don’t Tell,” (see my story on Spokane’s Margaret Witt and the so-called “Witt Standard”) there are beveled intellectual exercises judges must use to apply the proper level of “scrutiny” for evaluating the government interest in actions that intrude upon an individual’s rights to privacy, due process, and equal protection.
To the extent this is a necessary approach, it’s also a weirdly bloodless one. It doesn’t touch the heart. To see what’s really at stake you have to look to the people behind the legal challenges. Margaret Witt was a decorated flight nurse, as patriotic as can be, who just wanted to serve her country and the needs of wounded soldiers. Edith Windsor and her partner, Thea Spyer, had been in a loving relationship for over forty years, and had married in Canada in 2007. That was just fine with New York, which recognized their marriage. But it wasn’t fine with Uncle Sam because, with DOMA, we (as in the royal “we”) passed a law to smack gay couples around and make passive-aggressive use of the IRS to take their money.
In retrospect, it’s surprising that DOMA passed Congress by an overwhelming, bipartisan majority in 1996 and was signed into law by President Bill Clinton. Public attitudes have undergone a dramatic shift, especially since 2004, with a majority of Americans now favoring the legalization of same-sex marriage. Clinton and even Bob Barr—the then-Republican Congressman from Georgia who sponsored the bill in the House of Representatives—have both since spoken out against the law.
In my dream ending to this absurdity there is a federal “What’s it to You?” law. It would end all federal tax deductions for people who invoke religion to justify their bigotry, and those who would encourage the government to regulate the private lives of consenting adults.
Certainly one of the dramatic developments in Windsor’s challenge is that President Obama and the Justice Department bailed on the law. In a statement issued by Attorney General Eric Holder in February 2011, Holder said that while the Justice Department had previously defended cases challenging Section 3 of the statute, “this Administration will no longer assert its constitutionality in court.” That left the government in a rare position, and Congressional Republicans were forced to take up the defense of DOMA through the so-called “Bipartisan Legal Advisory Group of the U.S. House of Representatives” (BLAG).” The BLAG may be bipartisan, but the vote to defend challenges to DOMA was split along party lines, with Speaker John Boehner casting the deciding vote.
Even many Republicans must wonder what Boehner and company are thinking by continuing to defend DOMA. It’s not just in the court of public opinion where the arguments are slipping away from them. In an unusually candid comment, the Appeals Court majority in Windsor noted that, “at argument BLAG’s counsel all but conceded” that the reasons Congress enacted DOMA “may not withstand” the level of scrutiny required in judicial review. When the issue of marriage equality reaches the Supreme Court it will probably be former Bush Administration Solicitor General Ted Olson who will argue against DOMA or Proposition 8, the state citizen initiative that was used to eliminate the right of same-sex couples to marry in California. It was Olson, you may remember, who argued Bush v. Gore, on behalf of Bush and the Republican Party, before the U.S. Supreme Court. If you don’t think the Supreme Court will follow Ted Olson’s plea to rule in favor of same sex couples, then you probably haven’t read Justice Anthony Kennedy’s majority decision in Lawrence v. Texas
Neither Edith Windsor, nor Margaret Witt—nor the tens of thousands of others who’ve been unjustly afflicted by the insidious, official prejudice against gays and lesbians—should have had to wait years to be vindicated and compensated. But the end is in sight, if for no other reason than the fact that young voters are far less likely to harbor prejudice against homosexuals than elderly voters. This is tomorrow’s political landscape.
Edith Windsor’s case is on today’s polarized terrain whereupon the Republican defense of DOMA is rooted in a formula geared for national electoral politics. This is the marriage of political convenience between the de-regulatory, libertarian wing of the party and the social conservative wing that delivers evangelical Christian and Mormon voters for the GOP. The purity of the hypocrisy that results must be a secret ingredient in the political Krazy Glue that holds the Republican Party together. Out one side of the mouth, we have strident arguments about how oppressive government is when it regulates polluting industries, or reaches into wallets to collect taxes. Out the other side, we have moralistic arguments about why it’s necessary for government to prevent loving gay couples from getting married.
You shake your head and blink your eyes.
You look again and still what you see is a group of old, angry white man sitting on park benches beneath the boughs of a cypress tree, still arguing with the ghosts of abolition, and still arguing with themselves.
In my dream ending to this absurdity there is a federal “What’s it to You?” law. It would end all federal tax deductions for people who invoke religion to justify their bigotry, and those who would encourage the government to regulate the private lives of consenting adults. I haven’t done the math but I’m positive it would do a lot more than Mitt Romney’s tax plan to balance the federal budget.