Why Doma is Doomed !

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#1 Mar 27, 2013
What would America look like if there were two Congressmen, each married under the laws of his state, one who had to include his wife's financial holdings on federal disclosure forms and one who could keep his husband's money secret? How about two soldiers, one who could list her husband as her next of kin and one who could not make sure that her wife would be the one the Army sought out first if something happened? Two widowed fathers, one who, if his income fell low enough, could get social-security benefits on his late wife's account, and one who could not draw on his husband's? One widow who had to pay hundreds of thousands of dollars in taxes in she wanted to inherit her spouse's share in their home, and another who inherited her spouse's share tax-free?
Except for the first one, that is how America looks right now, and it is why the Defense of Marriage Act is doomed. The final example fits the facts of a case the Supreme Court will hear this week, one of two dealing with marriage equality; the other is a challenge to Proposition 8, the California measure banning same-sex marriage. As Jeffrey Toobin writes in Comment this week, there is a great deal of optimism surrounding both: whatever happens in the Court, and even if there are reversals, "The question about marriage equality for all Americans is not if it will pass but when. The country has changed, and it's never going back to the way it was."
But how will that look, legally? If one had to guess, the DOMA case appears to be stronger than the Prop 8 one, and more likely to be the instrument for the next stage in the progress toward marriage equality.
Prop 8 has, in some ways, received more attention, in part because it is about a constitutional right to same-sex marriage—and thus could, in theory, result in a single ruling that makes it legal in all fifty states. And maybe that will happen, though it is also possible that it will bring marriage equality only to California.(It also helps, publicity-wise, that the case is being managed by David Boies and Theodore Olson, lawyers who opposed each other in Bush v. Gore.) DOMA might seem a little more boring because it is not, strictly speaking, about stopping states from legalizing gay marriage and people being kept from the altar—romance denied—but about withholding federal benefits and obligations from such couples. The vehicle for it coming before the court is an estate-tax case.(It doesn't help that the pro-DOMA lawyers, formally called the Bipartisan Legal Action Group, are referred to in briefs by the unfortunate acronym BLAG.)
But federal paperwork is the venue for plenty of human drama. Under DOMA, even if same-sex couples could legally marry in all fifty states, the federal government could still pretend they weren't spouses. That is a problem in terms of both equal protection and federalism. At a certain point—one we are already past, given the number of states that have legalized same-sex marriage—even judges who have reservations about same-sex marriage should recognize that either DOMA is unconstitutional or that the more than eleven hundred federal laws, from inheritance to immigration, that rely on a definition of marriage that DOMA has straightjacketed are. And since DOMA makes them nearly impossible to fix, it amounts to the same thing. The language of DOMA—
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.
is so inflexible that it is hard to see how Congress could even fix various laws i.e., by amending every piece of legislation by inserting "or spouses under state law") without running into an Escher-esque series of dead ends.
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