Today for the first time, a U.S. Appeals Court declared DOMA’s “marriage is only a man and a woman” reasoning to be unconstitutional.
This is a very big deal.
It means almost certainly that the U.S. Supreme Court will take on marriage equality next year. We can’t predict how that will go, given the Court’s political make-up, but the evidence and arguments seem so tilted in our direction that it is impossible not to be a bit hopeful, a little optimistic.
This case, called Gill vs. Office of Personnel Management, is a strong one for marriage equality. In it, seven same-sex couples legally married in Massachusetts and three widowed spouses of gay marriages joined together with the legal advocacy group Gay & Lesbian Advocates & Defenders to bring suit. The Defense of Marriage Act is unconstitutional, they said, because it means that same-sex couples legally married in their state of residence (and there are over 100,000 of them) don’t get the same federal benefits as opposite-sex married couples from those same states.
What are these benefits?
There are many — the government has found 1,138 rights and protections given to straight married couples. These include the inability to file joint federal tax returns, which can increase the tax burden on a couple, or to include both gay parents on a child’s application for federal student aid, which can decrease the amount the child receives. A widowed gay spouse may not collect Social Security benefits. Lesbian and gay members of the military, who can now serve openly, may not claim benefits for their spouses — including married housing or the right to be buried next to them in a veteran’s cemetery. And a gay U.S. citizen whose spouse is a citizen of another country may see her wife deported, because the U.S. is unable to recognize same-sex marriages for immigration purposes.
But also, employees of the federal government — including, say, members of Congress — can’t extend their health care to their spouses, the way many people who work for private companies can.
The First Circuit, which affirmed a lower court ruling in Gill, gave a closely-reasoned rationale for overturning the part of DOMA that defines marriage between a man and a woman (a separate section of DOMA, which says that states should not have to recognize legal gay marriages performed in other states, was not at issue here). They said, basically, that the reasons Congress gave for enacting the law — 1. Supporting heterosexual marriage; 2. Defending traditional morality; 3. Protecting state sovereignty; and 4. Keeping down expenses — were both weak in themselves and also overshadowed by the strong interest the government has in protecting minority rights.
In fact, the court said that the third reason — protecting state sovereignty — was directly contradicted by DOMA. Congress’s intent was to protect states from having to recognize marriages they didn’t agree with that were performed in other states. But as shown in Gill, the court said, the U.S. government was infringing on state sovereignty by not recognizing marriages that the state had declared legal — and by potentially penalizing states for recognizing gay marriages by denying them crucial federal funds in areas like Veterans Administration and Medicaid.
These unintended consequences, the court said, stemmed from DOMA being very hastily enacted without much of a public hearing and practically no findings of fact.
How does this affect you?
Well, at the moment, it doesn’t. The court issued a stay, saying that they expected the Supreme Court to take up the case. So for all practical reasons, nothing has changed.
When the Supreme Court does take the case — and if it rules for us — it may choose to do so on very narrow grounds, as this U.S. Appeals Court did. So it may invalidate the “marriage definition” part of DOMA while leaving the state’s rights section intact.
That would mean that, after the decision, if you live in a state where marriage is legal — New York, Connecticut, Massachusetts, New Hampshire, Iowa, Vermont, Washington D.C. (and hopefully Washington and Maryland if those state laws aren’t overturned — and ideally, California, if Prop 8 is overturned by the courts) — then your marriage would be fully legal, federally and in your state of residence.
But if you were married in, say, Vermont, and then moved to North Carolina — which just added a marriage equality ban to its state constitution — then you would be married in the eyes of the federal government, but not in the eyes of your state.
That would be a mess, but it would be tenable. Better would be if the Supreme Court declared that gay people have the right to marry, or overturned DOMA completely — but that is very, very unlikely.
The worst case? The Supreme Court upholds the DOMA definition of marriage and upholds each state’s right to discriminate against gay marriages performed in other states. It wouldn’t be impossible to bounce back from that, but it would take a very, very long time.
Even so, Gill is a strong case to be taken up by the Supreme Court — and it may be taken up in conjunction with the Prop 8 case, which is also very good for us.
So, celebrate today. Because the U.S. Appeals Court decision is a very large stride toward justice. Today, we won.
