Au Revoir DOMA!
President Bill Clinton enacted two ineptly named laws: ‘Don’t Ask Don’t Tell’ in 1993 and Defense of Marriage Act (DOMA) in 1996. The two laws can be coherently summarized by their names, but the names do not express the intent and effect they had.
DOMA strictly defines “marriage” as a “legal union between one man and one woman as husband and wife” and defines “spouse” as a “person of the opposite sex who is a husband or a wife.”
It is rather Orwellian for the federal government to define words to its own specifications.
President Clinton went on to regret his decision. In his op-ed in the Washington Post, Clinton called DOMA “incompatible with our Constitution,” and only bargained with the Republicans to win reelection.
In 2011, ‘Don’t Ask Don’t Tell’ was repealed. And recently, DOMA was declared unconstitutional by the Supreme Court.
DOMA was the law of the land for sixteen years and nine months.
In other words, the federal government invalidated the state-sanctioned marriage of gay couples for sixteen years and nine months.
Historically, civil liberties are only recognized once they have been infringed for what appears to be too long. Abolition of slavery, citizenship, suffrage, speech, equal protection of the law — all are issues society waited too long to grapple with.
And gay marriage now joins the ranks.
It is only when the flames compromise the foundation that we acknowledge there is a fire.
The Supreme Court’s decision to strike down DOMA has its own obvious logical roots: the federal government should not and cannot deny gay couples the recognition of their marriage.
The case is titled “United States v. Windsor” after Edith Windsor who sued the federal government over DOMA. The state of New York recognized Windsor’s marriage with Thea Spyer, and when Spyer died in 2009, she left her estate to Windsor.
But Windsor had to pay $363, 053 in estate taxes because she could not claim the federal estate tax exemption for surviving spouses. The exemption did not apply to same-sex married couples. While the issue may appear to be monetary, it has obvious national implications.
If a state sanctions same-sex marriage, the federal government is obligated to recognize it.
Times are different since the Clinton Presidency. Gallup poll shows 55 percent of Americans support same-sex marriage, and the branches of government, especially the Supreme Court, reflect that poll number.
Of course, all branches of government are political. The Supreme Court reflects the position of its nine judges who in turn reflect the positions of the President who nominated them and the senators who confirmed (or not) them.
The ruling was 5 to 4 with the conservative wing of the court headed by the Chief Justice, John G. Roberts Jr. (nominated by George W. Bush), in the minority. The majority opinion was written by Anthony Kennedy, the only remaining moderate Republican who is openly moderate.
And having spent an hour reading his opinion, I stumbled across this redemptive sentence:
Justice Kennedy writes, “DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriage of others.”
The Justice makes the law look simply discriminatory — which it undoubtedly is. But there is something worth cherishing in having the Justice recognize it.
Many waited sixteen years and nine months for that recognition.
But the recognition is still limited in scope. The court leaves the issue of same-sex marriage up to the states. And so far only 12 states and the District of Columbia allow same-sex marriage.
Without a sweeping federal legislation the process will likely be slow. So far we have had laws against gay marriage, not for it.
Justice Kennedy makes another obvious statement rather poignant: “Private, consensual sexual intimacy between two adult persons of the same sex may not be punished by the State…”
Bottom line: the State has no authority to “punish” same-sex sex.
If you ever happen to read Supreme Court case opinions because you’re in law school or you’re a lawyer or a very informed citizen (the latter of which is unlikely), read Justice Antonin Scalia’s opinions over the others, because he writes some of the most disagreeable and entertaining opinion of them all.
In his dissent Justice Scalia writes: “As I have observed before, the Constitution does not forbid the government to enforce traditional moral and sexual norms.”
So, what the constitution does not forbid is under the legislative purview!
Scalia is a staunch conservative and most provocative in defending his stances. In “United States v. Windsor,” he argues for judicial restraint, meaning the court has no right in deciding the legality of DOMA.
If that were the case, it would be superfluous for the Justice to defend DOMA. But he does … which is more an expression of his own political opinion than his judicial duty.
Sumeet Singh is a fourth-year English major and can be reached at email@example.com.