credit: OZinOH / Foter.com / CC BY-NC-ND
This morning the Supreme Court struck down the Defense of Marriage Act, a 1996 law prohibiting federal recognition of same-sex marriages. The 5-4 ruling, written by Justice Anthony Kennedy and joined by the Court's four liberal Justices, takes aim at the law for unfairly stigmatizing individuals who enter into same-sex marriages in states where those unions have been made legal. Here's the gist of the argument.
DOMA has to be considered in the context of legal same-sex marriage in the states. Kennedy points out that multiple states have enacted laws permitting same sex marriage. Those states, he writes, "decided that same-sex couples should have the right to marry and so live with pride in themselves and their union and in a status of equality with all other married persons." Given that a dozen states have legalized same-sex marriage, "the design, purpose, and effect of DOMA should be considered as the beginning point in deciding" whether it's Constitutional.
DOMA was designed to affect people participating in legal marriages. Kennedy notes early on that the federal law does not actually forbid states from legalizing same-sex marriage. But it is intended to directly affect individuals who are engaged in legal unions—individuals that state law was intended to protect. DOMA's operation, Kennedy writes, "is directed to a class of persons that the laws of New York, and of 11 other States, have sought to protect."
As a result, DOMA creates an inherent inequality between marriages within the same state. DOMA prohibited the federal government from recognizing state-legal same-sex marriages for purposes such as taxes and benefits. For states that had legalized same-sex marriage, that left an inherently unequal situation: Some marriages were eligible for certain federal benefits and tax rules, while others weren't, despite being the same in the eyes of the state. As Kennedy puts it, DOMA "rejects the long-established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State" (though they may vary between states). In the end, the law's "principal effect is to identify a subset of state-sanctioned marriages and male them unequal"—thus "creating two contradictory marriage regimes within the same State."
It's not just that DOMA creates inequality between marriages within the same state. It also harms a class of people that the states intentionally set out to protect. The federal law, Kennedy writes, is used "to impose restrictions and disabilities" on individuals in same-sex marriages. But when New York legalized same-sex marriage, the state intended to "give lawful conduct a lawful status." DOMA undermines that status, through intent and effect, Kennedy writes, by seeking "to injure the very class New York seeks to protect."
DOMA was explicitly intended to disparage the legal practice of same sex marriage. Kennedy is quite blunt on this point. "The avowed purpose and practical effect of the law," he writes, "are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the states."
Disparagement of legal same-sex marriage wasn't a side effect of DOMA. It was the whole point. The law's text and enactment, Kennedy writes, "demonstrate that interference with the equal dignity of same sex marriages, a dignity conferred by the States in the exercise of their sovereigne power, was more than an incidental effect of the federal statute. It was its essence." Thanks to the law, "same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways." They don't get federal benefits, they have to follow a uniquely complicated procedure to file taxes, and they are even prohibited from being buried together in veteran's cemeteries.
In other words, DOMA singles out a class of people engaged in otherwise legal behavior for harm—and there's no good reason to justify doing so. The statute is invalid, "for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State by its marriage laws, sought to protect in personhood and dignity."
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