The Nation: How Dead Is DOMA, Really?

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People rallying in front of the California Supreme Court Building as arguments are heard for and against Proposition 8 in San Francisco in 2009. Last week, the Obama administration announced that it would stop supporting the Defense of Marriage Act (DOMA). i

People rallying in front of the California Supreme Court Building as arguments are heard for and against Proposition 8 in San Francisco in 2009. Last week, the Obama administration announced that it would stop supporting the Defense of Marriage Act (DOMA). David Paul Morris/Getty Images hide caption

itoggle caption David Paul Morris/Getty Images
People rallying in front of the California Supreme Court Building as arguments are heard for and against Proposition 8 in San Francisco in 2009. Last week, the Obama administration announced that it would stop supporting the Defense of Marriage Act (DOMA).

People rallying in front of the California Supreme Court Building as arguments are heard for and against Proposition 8 in San Francisco in 2009. Last week, the Obama administration announced that it would stop supporting the Defense of Marriage Act (DOMA).

David Paul Morris/Getty Images

E.J. Graff is a journalist and a resident scholar at the Brandeis Women's Studies Research Center.

On Wednesday, Attorney General Eric Holder stunned lesbians and gay men and allies by announcing that the Obama administration will no longer defend Section 3 of the 1996 Defense of Marriage Act (DOMA).

For those who saw only the headlines, the immediate question was: is DOMA, the 1996 law limits marriage, for purposes of the federal government, to one man and one woman, dead? The short answer: no. For now, two women or two men who are married in their home states are still single for the purposes of taxes, Social Security benefits, immigration and all other federal legal matters. Although DOMA is clearly on life support, it is still the law, and it will be until Congress repeals it or a higher federal court declares it unconstitutional. (Congress itself can defend DOMA against ongoing court challenges, and outside groups can petition to intervene on DOMA's behalf.)

But the headlines missed the technical but important note in Holder's announcement: the Obama administration believes that any law affecting lesbians and gay men deserves "heightened scrutiny" by the courts. That obscure legal term means that the Obama administration believes — and will argue officially — that the federal and state governments can't treat lesbians and gay men any less well than it treats our heterosexual siblings without giving an exceptionally good reason. "Because we want to" is not a good reason. "Because it's always been this way": ditto. Because they're not as good as we are; because they're different; because it says so in the Bible; because they're bad models for children; because we don't want them spreading their cooties in our offices: ditto, ditto, ditto.

The Obama administration doesn't get to decide the standard of review; that's the job of the federal courts. But having the government argue that courts should be suspicious if lesbians and gay man are treated differently than heterosexuals is extremely significant. As Jenny Pizer, Lambda Legal's Marriage Project Director, puts it, "what the government says usually gets greater weight than what any other party says" in federal court. And since those are, basically, the arguments against treating lesbians and gay men equally under the law, the Holder/Obama announcement will affect every gay- and lesbian-related court claim about government treatment, whether that's in the military, in federal offices, in marriage or in schools, from now on.

So what, exactly, does that mean for DOMA — and for everything else about gay and lesbian lives?

Usually, states get to decide which marriages they will perform, and the U.S. government recognizes them all equally: if a state decides that first cousins can marry, the IRS and the Social Security Administration must treat that couple as married. DOMA offers the only exception, saying that the federal government does (Section 3), and other states (Section 2) may, definemarriage as a union only between one man and one woman.

When DOMA was passed, it affected exactly zero American marriages: no state was yet marrying same-sex pairs, or recognizing same-sex couples who had married in another country. But by now, approximately 80,000 same-sex couples have legally married in Massachusetts, Connecticut, New Hampshire, Vermont, Iowa and the District of Columbia, or were married in another country and are recognized as married by their home state. (Maryland, New York and New Mexico have announced officially that they recognize same-sex marriages performed elsewhere.) Which means that tens of thousands of couples face the annoyance and cost of being married under state law but single to the US government. As half of one such couple, let me tell you, it is really annoying and costly. We are legal strangers when it comes to such federal niceties as Social Security benefits, health insurance benefits (my wife is taxed about $2,000 if I'm listed on her health insurance policy), pensions and taxes.

Is that constitutional? Does the federal government have the right to pick and choose which marriages it recognizes and which it ignores? That question is in front of federal courts in Massachusetts, in California and in more recently filed cases in Connecticut and New York. Imagine that Edie and Thea had been together for forty-four years; that they married in Canada in 2007; that their home state of New York recognized their marriage; but that when Thea died in 2009, that the U.S. government stepped in to tax what Thea left to Edie as if the two were not married (and therefore owned everything in common) but were complete strangers — sticking the widow with a tax bill of $350,000. That's the case of Windsor v. United States, which the ACLU filed on Edie Windsor's behalf in November 2010 in New York. At the same time, Gay & Lesbian Advocates & Defenders filed a similar case, Pedersen v. Office of Personnel Management, on behalf of a group of plaintiffs in Connecticut. All these lawsuits argue essentially that the US government has no power to decide which married couples it will consider legally married; it has to treat all marriages equally. In Massachusetts this past July, Judge Tauro agreed, and declared DOMA unconstitutional; that decision is now on appeal to the First Circuit.

Read the rest of this article by E.J. Graff at The Nation.

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