Marriage Equality Moves Forward

Marriage is a fundamental right that should neither have to be fought for nor defended at the ballot box.  However, due to the tepid response of many state law makers, proponents of same-sex marriage have resorted to ballot initiatives to obtain the same rights afforded to heterosexual couples.  This past election day marked a great leap forward for marriage equality in many states.

Voters in Maine, Maryland, and Washington approved giving gay and lesbian couples the freedom to marry by a large margin.  In Minnesota, voters rejected a ballot measure that would have incorporated that state’s existing ban on same-sex marriage into their state constitution. These ballot box triumphs are epic and reminiscent of the civil rights victories in the 1950s and 1960s and reflect the best principles of our country as we begin to correct hundreds of years of discrimination against gay and lesbian couples.  Unfortunately, however, these state victories will never allow true marriage equality until the odious Defense of Marriage Act (DOMA) is repealed by Congress or ruled unconstitutional by the U.S. Supreme Court.  This is because DOMA, as a federal statute, effectively trumps state law when dealing with federal benefits afforded to married couples.

DOMA restricts the federal definition of marriage to between one man and one woman.  This definition precludes same-sex couples from many important federal benefits including the filing of joint tax returns; FMLA, which allows one to take unpaid leave from employment to care for a sick or injured spouse; the ability to collect spousal or surviving spouse benefits under social security; receiving equal family health and pension benefits as other federal civilian employees; and receiving the benefit of the spousal deduction for federal estate tax purposes.

Most recently, the Second Circuit Court of Appeals ruled that DOMA violates equal protection by barring same-sex couples legally married under state law from receiving federal benefits available to heterosexual couples in Windsor v. U.S., which was decided on October 18, 2012.  Edith Windsor – the Plaintiff in this matter – was married to her partner in the state of New York, a state that legally recognizes same sex marriages.  However, when her partner died in 2009, Windsor was prevented by DOMA from claiming an exemption from the federal estate tax available for surviving spouses, and was required to pay $363,053.00 in estate taxes.

Judge Dennis Jacobs, a George H.W. Bush appointee who wrote the majority opinion, stated that the law’s defenders – namely congressional republicans who took up the cause after Obama decided not to defend the law in 2011 – did not offer any good reason for treating married same-sex couples differently from their heterosexual counterparts.

The Constitutional standard requires the government to have an “exceptionally good” reason to justify different treatment of different people.  As Judge Jacobs explained, the law is “not related to an important governmental interest” and gay people “are not in a position to adequately protect themselves from the discriminatory wises of the majoritarian public.”

It is certain that this case will be appealed to the U.S. Supreme Court.  When this occurs, the Supreme Court should accept the appeal and promptly rule DOMA unconstitutional.

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