For the second time this year, a federal appeals court has struck down part of the Defense of Marriage Act. All that is needed now is for the U.S. Supreme Court to get this discriminatory law off the books for good.
The most recent case involves an 83-year-old New York woman who was not allowed to claim the spousal deduction on federal estate taxes after her partner of more than 40 years died in 2009. Their marriage, which occurred in Canada in 2007, was recognized by the State of New York, but not the U.S. government.
Bias against same-sex couples based on the 1996 marriage law extends far beyond estate taxes. Marital status is a factor in more than 1,100 federal laws, including those that affect, among other things, Social Security, housing, food stamps, veterans benefits, and taxes on income, gifts, and property sales.
The 2nd Circuit Court of Appeals in New York was not the first panel to rule against the law. But it was the first to declare that because of the history of discrimination against gay people, laws that affect them deserve “heightened scrutiny.” The court said the marriage law fails that test and is thus unconstitutional.
In its ruling, the court made an important and often overlooked distinction between “holy matrimony” and civil marriage. “A state may enforce and dissolve a couple’s marriage,” the court said, “but it cannot sanctify or bless it.”
The reverse also is true: Religions can define relationships they will sanctify, but they can’t dictate what constitutes the legal union of two people’s lives.
The Defense of Marriage Act sped through Congress in 1996 with little opposition, largely because President Bill Clinton was running for re-election and Democrats didn’t want it to be a campaign issue. Thirty-two states, including Ohio, also have passed laws or constitutional amendments that limit marriage to one man and one woman.
But what is right — and protected by the Constitution — doesn’t always coincide with popular sentiments that prevail at a given time. Five states and the District of Columbia now allow same-sex couples to marry. Five others allow civil unions that guarantee rights similar to those conferred by marriage.
Last February, the Obama Administration told the Justice Department to stop defending the marriage law. Some Ohio cities — including Toledo — offer domestic partnership registries that provide some of the protections of marriage.
Four states have referenda on same-sex marriage on their Nov. 6 ballots. A group called Freedom to Marry Ohio is collecting signatures to place a proposal before voters that would repeal the state Constitution’s ban on same-sex marriage. The group hopes to have the issue on the statewide ballot next fall.
The federal government has no reason to treat gay and lesbian couples differently from heterosexual couples. The Defense of Marriage Act denies legal standing to people whose sexual preferences some other people find morally objectionable. As such, it differs little from state laws (some still on the books) that regulate sex acts by consenting — even married — heterosexual couples.
Even a casual reading of the 14th Amendment’s equal-protection clause makes plain that same-sex couples have been excluded from its provisions. The Supreme Court needs to fix that, now.