The Defense of Marriage Act (DOMA) is controversial for its definition of marriage as between a man and a woman and for the feeling of security it has provided states wishing to avoid any legal recognition of the relationships of same-sex couples and families. Because DOMA restricts marriage thusly, it deprives same-sex couples of numerous federal benefits, including tax, Social Security, health care, and retirement benefits.
The act’s invidious discrimination against gays and lesbians and its meddling in long-cherished concepts of equal protection and full faith and credit, have been condemned by a number of federal courts on varying issues. Most recently, the First and Second circuit courts of appeals have struck down DOMA’s definition of marriage as unconstitutional, and the Supreme Court has now agreed to hear the case.
For example, in Windsor v. United States, the U.S. Court of Appeals for the Second Circuit confronted a challenge to DOMA by a lesbian woman, who had been married in Canada but was resident in New York at the time of her spouse’s death. Due to DOMA’ s heterosexist definitions of “marriage” and “spouse,” the plaintiff was denied federal estate tax benefits. The Second Circuit, finding homosexuality to be a classification that demands a heightened level of intermediate scrutiny, concluded that DOMA is not substantially related to any important governmental interest and thus violates equal protection guarantees embodied in the Fifth Amendment.
The First Circuit also declared DOMA’s definition of marriage unconstitutional earlier this year. This federal court battle up to the Supreme Court, and beyond in terms of the consequences of any ruling, is consuming a great deal of time and social resources and will result in unfortunate burdens and uncertainty for those affected.
The question that should be nagging at us is why Congress does not save everyone a great deal of time and money and repeal this dying statute? Will the repeal bill, which is called the Respect for Marriage Act and was introduced in 2011, garner the support it needs to pass? Or will Congress refuse to take note of, most importantly, the sound reasoning of court decisions striking down DOMA as unconstitutional; of the recently re-elected president, who won the popular vote and the Electoral College after saying that he personally believes in same-sex marriage; of the considerable number of polls in 2012 that showed that the majority of Americans now favor same-sex marriage; and of the growing number of states and countries around the world that legalized same-sex marriage by court decision, legislative fiat, or popular vote?
Some of Congress’s unfortunate contributions to the great civil rights issue — LGBT rights — of this century have been its failure to pass a bill to introduce employment discrimination protections for LGBT individuals; the introduction of amendments to the Constitution to endorse only opposite-sex marriage; the passage of DOMA; and using federal money to defend DOMA, a statute that the Department of Justice abandoned and the majority of the electorate do not seem to want.
One accomplishment, not to be ignored, is the repeal of “Don’t Ask, Don’t Tell,” which was a policy that was drowning the military in controversy and costing a great deal of money to defend. Since then, a recent study tells us that the repeal has had no real negative impact of the military and may even have helped cohesion. This is, of course, also not to demean the other important efforts of many in Congress who have worked to propose and support legislation that is supportive of the LGBT community.
We think it is time for Congress to inspire us more on this civil rights issue. Simply put, it should save all of the considerable resources that are being spent to tear DOMA down one brick at a time. It should recognize the very apparent emerging consensus in society and amongst many federal and state courts on LGBT rights and rid us of an unconstitutional statute. Perhaps some of that time, energy, and money can then be devoted to much more pressing issues in society like unemployment, health care, and education, rather than a dwindling number of people, who desire a legal right to discriminate against a group of people whose marriages have little effect on their own lives.•