The Indefensible “Defense of Marriage Act”

Today a New York Times editorial and an op-ed by Anne Stanback, board chairwoman of Freedom to Marry Action, spell out why DOMA is wrong and must be overturned. It's no coincidence that these pieces were published on Valentine's Day – because the holiday is about celebrating love, and so is marriage.

When the so-called "Defense of Marriage Act" was passed back in 1996 there were no states that allowed gay couples to get married, making the law "more symbol than substance," as Anne Stanback puts it in an op-ed in today's Hartford Courant. But that changed in 2004, when the freedom to marry came to Massachusetts. "What had been a mean-spirited legal insult became a matter of harm to real families," writes Stanback.

"Families like Herb Burtis and John Ferris, who married in Massachusetts in 2004 after 55 years together. When John died in 2008, 80-year-old Herb had to deal with the grief of losing his partner of 60 years. But unlike other surviving spouses, Herb has to fight the federal government for John's Social Security benefits, benefits he desperately needs and that John had paid into for decades.


"Four years later, Connecticut same-sex couples were also getting married and having the same rude awakening as Massachusetts couples. That's what happened to Geraldine and Suzanne Artis, who live in Clinton with their three sons. The Defense of Marriage Act prevents them from filing joint tax returns, which means they pay the federal government nearly $1,500 more each year than their straight, married counterparts. Even more distressing, however, is that they must choose which of them claims the children on her tax form, essentially dividing their family."


Several lawsuits
involving families being hurt in similar ways are now making their way through the federal courts. The Justice Department says it has no choice but to defend DOMA, but an editorial in today's New York Times strongly disagrees, saying "The executive branch’s duty to defend federal laws is not inviolate. This one’s affront to equal protection is egregious."

"On the merits, this should be an easy call. A law focusing on a group that has been subjected to unfair discrimination, as gay people have been, is supposed to get a hard test. It is presumed invalid unless the government proves that the officials’ purpose in adopting the law advances a real and compelling interest. That sort of heightened scrutiny would challenge the administration’s weak argument for upholding the act. It would also make it more difficult to sustain other forms of anti-gay discrimination, including state laws that deny same-sex couples the right to marry. By now, such blatant discrimination should be presumed to be unconstitutional, and the Justice Department should finally say so."


Stanbeck also points out that there's been a huge swing in public opinion about marriage since DOMA was passed. A majority of Americans now support the freedom to marry, as people see that gay couples' ability to marry "harms no one and helps strengthen families and communities." Many high-profile figures have spoken out on the issue as well. These people – collected in Freedom to Marry's Voices for Equality – range from civil rights leaders like John Lewis and Coretta Scott King to Republicans like Laura Bush and Meghan McCain.

Even the Republican congressman who sponsored DOMA, Bob Barr, and the president who signed the law, Bill Clinton, now say the it should be scrapped. And so does President Obama.

"Does that mean that success is inevitable?" asks Stanback. "No it doesn't. They say you make your own luck and in this case, I think we are making our own inevitability. The work is not finished, but the finish line is within reach."