Two bad laws died on June 26. The U.S. Supreme Court struck down a state and a federal law that defined marriage as something for heterosexual couples only.
For the 130,000 legally-married couples in the U.S., this means an end to second-class status and end to a stigma in the law.
I predicted one year ago that the court would strike down provisions in the federal Defense of Marriage Act (DOMA) and California’s Proposition 8. The court ruled DOMA violated the due process and equal protection clauses in the 5th Amendment of the Constitution that all people should be treated the same by the law.
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The right to marry is not in the U.S. Constitution, but the U.S. Supreme Court has, in at least 14 cases since 1888, ruled that marriage is a fundamental right.
The court also struck down the anti-gay Prop. 8. California Gov. Edmund G. Brown Jr. has already directed the California Department of Public Health to tell the state’s counties to start issuing marriage licenses to same-sex couples in California. “After years of struggle, the U.S. Supreme Court today has made same-sex marriage a reality in California,” Brown said. Because the court ruled on narrow procedural grounds, it means the case applies to California only.
In the background, states are embracing same-sex marriage. Minnesota just became the 12th state to recognize same-sex marriage, joining Rhode Island and Delaware which on May 2 and May 7 respectively, enacted laws opening up equal marriage rights to all couples.
The good news
For starters, the end of DOMA means that Edith Windsor, who brought the case against DOMA, gets a $363,000 federal estate tax refund. She was legally married to Thea Spyer in New York. Dr. Speyer died in 2009 and named Windsor as her sole heir. Because of DOMA, Windsor had to pay the taxes when the IRS denied her the marital deduction, saying she was not a “spouse.”
The end of DOMA removes anti-gay language from 1,138 federal laws and the whole spectrum of federal regulations. This brings a host of new rights and benefits for gay couples, ranging from Social Security, housing, taxes, criminal sanctions, copyright and veteran’s benefits.
- Same-sex married couples can now file joint tax returns easily.
- Same-sex married couples can now get government healthcare benefits as spouses.
- Employers have to protect an employee’s job while the employee cares for a same-sex spouse under the terms of the Family and Medical Leave Act.
- COBRA health coverage after leaving a job will extend to a same-sex spouse’s coverage too.
- Couples get special protections for domestic-support obligations under the Bankruptcy Code.
- Employees now will receive higher Social Security benefits if their same-sex spouse is disabled, and a death benefit and survivor’s benefits if that spouse dies.
Where we go from here
The 5-4 decision on DOMA does not create a constitutional right to same-sex marriage. But it does supply power to legal arguments that will be used to challenge laws in 41 states that ban same-sex marriage.
The central issue in the gay marriage cases was that the Supreme Court saw that sexual orientation – like gender, race and national origin – creates a discernible class of people based on their personal identity. The Constitution recognizes this as creating a “suspect class.” This violates the Equal Protection Clause that all persons who are similarly situated should be treated alike. Discriminating against a group based on their personal identity is unconstitutional.
Arguments by the Republican-led “Bipartisan Legal Advisory Group” were repudiated. It wanted to uphold DOMA, arguing that gay marriage violated the traditional definition of marriage that it violated moral beliefs, and that sexual orientation is a “fluid characteristic.”
Primitive states with laws banning gay marriage will have to overcome the Supreme Court’s ruling, saying “The differentiation demeans the couple, whose moral and sexual choices the Constitution protects and whose relationship the State [New York] has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples.”
And more bad laws will die.