[Editor's Note: On Thursday, a federal appeals court ruled the Defense of Marriage Act as unconstitutional. BlogHer Shannon LC Cate explains why - and what could happen in the future. --Grace]
People invoking the “traditional” or “age-old” or “historical” “definition of marriage” are invoking something that doesn’t exist. No one ever took the trouble to “define” marriage until 1996, when, in a baldly political attempt to reconcile his known queer-friendliness with increasingly mean but powerful right-wing politicians' equally baldly political moves to turn gay-baiting into votes, Bill Clinton signed the so-called “Defense of Marriage Act” into law. He signed it, shamefully enough, in the middle of the night, hoping no one would notice.
Lots of us noticed. We’ve been noticing ever since, to the tune of hundreds of thousands of dollars in what I like to call the “queer tax.
One of two things the Defense of Marriage Act—or “DOMA”—did was define “marriage” as heterosexual for the purposes of rights and privileges granted to married couples by the federal government. That definition was put in place to insure that whatever local jurisdictions might do to recognize the life-long, monogamous partnerships of same-sex couples, the federal government would not give these couples the same status as opposite-sex couples who legally married.
When Massachusetts granted same-sex couples the right to marriage at the state level, several states scrambled to either pass similar laws or to ban same-sex marriage by state constitutional amendment or mini-DOMAs at the state level. Many states now ban same-sex marriage, while six, plus the District of Columbia explicitly provide for same-sex marriage.
What this means for same-sex couples is that though they may be married—legally, by the state—they are not married enough for the federal government. They are thus denied the numerous benefits only awarded at the federal level to married couples. Those benefits include sharing a tax status, receiving a deceased partner’s Social Security, being able to take federal family leave to care for an ill partner, being able to sponsor a partner for immigration purposes, and over one thousand other things only available to married couples at the federal level.
Yesterday, the first circuit court struck down this piece of the DOMA, saying that the U.S. Congress, in writing the law, created a two-tiered, separate and unequal marriage system in which some married couple get access to benefits other married couples do not. The court said that the federal government had no compelling reason to structure discrimination into its law in this way and that in a conflict between Massachusetts’ right to marry its citizens and the federal government’s right to ignore those marriages, Massachusetts has the greater claim.
This is good news for those married in places like Massachusetts or New York or D.C., because if the case is appealed (and it will be) and if the U.S. Supreme Court takes it up (and it is likely to), people married in those places will gain access to the federal benefits denied them now.
Oddly, however, the court declined to challenge DOMA’s other part, which states that no state must recognize a same-sex marriage made in another state. The first circuit even said that the federal system (think “states’ rights) allowed states to make laws banning same-sex marriage, as long as other states were free to provide for same-sex marriage.
I call nonsense. The full faith and credit clause of the U.S. Constitution guarantees that certain important legal proceedings—things like marriage, adoption, divorce and others—when completed in one state must be given “full faith and credit” in all states. This is why when your heterosexual friends get married in one state, they are still married after moving out of state—no matter which state they move to. It’s why if you can fly to Nevada and get a quickie divorce, then fly back home to Wisconsin and be divorced. It’s why when you adopt a child in California, you are still his parent when the family moves to New York.
To suggest that this credit be given to heterosexual marriages but not same-sex ones is still to support a two-tiered, intentionally discriminatory system that holds no water when tested for compelling interest.
I applaud the first circuit court, and I’m hopeful that now that the president has announced he will no longer put any federal legal support behind the defense of DOMA (which he did over a year ago, well before the vice president supposedly forced him to admit he supports same-sex marriage) that it will soon fall. But it can’t fall by halves. Either the DOMA is unconstitutionally discriminatory or it isn’t—and it is.
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