DOMA Digest

I follow gay rights news.  I have to.  I am married to a man.  Because of that, there is so much denied to us as a couple.  There are over 1500 rights we don’t have that straight couples do.  Some are annoying, like hospital visitation.  For us, in our state, we need to sign a form requesting that our husband is our “relative” that can make decisions.  Some rights cost us more money than straight couples.  We cannot file taxes as a married couple.  I cannot claim my husband as a dependent, even though he is a student and I am funding his schooling (which is triple the cost of residence – more on that later).  I can’t add him to my insurance plan, so we need to pay for two separate policies.  If I die, he is not entitled to spousal benefits and inheritance laws.  Some laws affect us very deeply.  My husband Canadian, and because of our discriminatory laws, I cannot sponsor him for residency here – so when his student visa expires in a few years, we have some very tough decisions to make.

Most of our problems stem from a law named the Defense of Marriage Act, or DOMA.  DOMA is on our minds very frequently, as it is a lot of gay couples in our situation.  But in talking with friends and family, I realize that not everyone is as aware of DOMA as we are.  Even some gay friends are either totally unaware or grossly uneducated about this horrid law. I thought I would go through and give an overview of DOMA and where it stands now.

What is DOMA

DOMA was a law passed with bitarisan support in 1996.  It was signed into law that year by President Bill Clinton.  DOMA states, in summary:

Defense of Marriage Act – Amends the Federal judicial code to provide that no State, territory, or possession of the United States or Indian tribe shall be required to give effect to any marriage between persons of the same sex under the laws of any other such jurisdiction or to any right or claim arising from such relationship. Establishes a Federal definition of: (1) “marriage” as only a legal union between one man and one woman as husband and wife; and (2) “spouse” as only a person of the opposite sex who is a husband or wife. (source)

In effect, it means that even if you allowed to marry in your state, or in another country, that marriage does not need to be recognized by other states, and that there is no federal recognition of your marriage.

Same Sex Marriage

The first state to allow gay couples to get married was Massachusetts in 2004.  Since then the list has grown to include Connecticut, the District of Columbia, Iowa, Maine, Maryland,  New Hampshire, New York, Vermont and Washington.  California allowed gays to wed for a short time in 2008, after the CA Supreme Court ruled that a law barring same-sex marriage was unconstitutional.  That year, voters in the state approved Proposition 8, defining marriage as between one man and one woman.  The details and fate of Prop 8 is a long story, but in terms of state recognition of marriage, CA does recognize the more than 18,000 couples that were legally married there between May and Nov, 2008.

There are several state that offer civil unions – that is a marriage like status with most of the same rights married couples receive in those states (but again, no federal recognition).  They are New Jersey, Delaware, Hawaii, Illinois and Rhode Island.  Domestic Partnerships are a third tier of state recognition, and they are recognized in California, Nevada and Wisconsin.  Other states, counties and cities offer a variety of registries for same sex couples that offer a handful of rights.

Repeal of DOMA

There is currently a bill, the Respect for Marriage Act (RMA) being introduced in congress.  The bill repeals doma, and according to the Human Rights Campaign:

…restores the rights of all lawfully married couples—including same-sex couples—to receive the benefits of marriage under federal law.  The bill also provides same-sex couples with certainty that federal benefits and protections would flow from a valid marriage celebrated in a state where such marriages are legal, even if a couple moves or travels to another state.

In a Republican lead House of Representatives, the bill has little chance of passage.

Court Challenges

There have been numerous challenges to DOMA’s constitutionality.  Most recently, challenges have focused on section 3 of the law – the part stating that marriage must be between one man and one woman to be recognized federally.  Nine courts have found DOMA to be unconstitutional based on the Equal Protection Clause of the Fourteenth Amendment to the Constitution, which states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Several of these cases have been appealed to the Supreme Court of the United States.  The court has agreed to hear arguments on one of the cases so far.  In the case The United States vs. Windor, Edith Windsor filed a case in.  When her longtime partner (together 40 years) and wife (married in Canada in 2007), Thea died, Ms Windsor was forced to pay over $300,000 in inheritance tax.  In the state of New York, where they lived and where same sex marriage is now legal,  a straight widow would pay nothing.  Lower courts have ruled in Ms Windsor’s favor, and when her case was appealed to the SCOTUS, Attorney General Eric Holder refused to defend DOMA.  House Republicans decided to take up the fight and hired Attorney Paul Clement.

Most people agree, it is only a matter of time before gay couples are allowed the right to marry in this country.  For some of us, the clock is ticking.  Will the Supreme Court make a decision this year striking down all anti marriage equality laws and constitutional amendments?  Probably not – most experts agree their ruling, if in favor of gay Americans, will be narrow…. but their decision may be a huge catalyst to speed up the the inevitable.

Below is a huge list of supporters of equality – ones that took the time to make that support official by sending a message to the SCOTUS -

Amicus Briefs

Oral arguments are set to be heard in late March 2013.  Prior to that, friend of the court briefs, or amicus briefs, as allowed to be filed.  Here is a list of those filed in support of Ms Windsor:

  • 278 Employers And Organizations Representing Employers
  • 212 Members of Congress
  • 15 States and the District of Columbia
  • American Bar Association
  • American Humanist Association et. al.
  • American Jewish Committee
  • American Historical Association and Historians
  • American Psychological Association et. al.
  • American Sociological Association
  • Anti-Defamation League et. al.
  • Former Cabinet Secretaries and Administrative Officials
  • Center for Fair Administration of Taxes
  • Cato Institute and Constitutional Accountability Center
  • Citizens for Responsibility and Ethics in Washington
  • Constitutional Law Scholars
  • Family and Child Welfare Professors
  • Family Equality Council et. al.
  • Family Law Professors and American Academy of Matrimonial Lawyers
  • Former Federal Election Commission Officials
  • Federalism Scholars
  • Former Federal Intelligence Officer
  • Former Senators Bill Bradley, Tom Daschle, Christopher J. Dodd and Alan K. Simplson
  • Gay and Lesbian Medical Association
  • Gay & Lesbian Advocates & Defenders (GLAD) and Lambda Legal
  • Gary J. Gates, Williams Distinguished Scholar at UCLA School of Law
  • Institute for Justice
  • Labor Organizations
  • Leadership Conference on Civil and Human Rights, Bar Associations and Public Interest and Legal Service Organizations
  • Los Angeles County Bar Association
  • Former Military Officials
  • NAACP Legal Defense and Education Fund
  • Honorable Judge John K. Olson
  • Organization of American Historians and the American Studies Association
  • Outserve-SLDN
  • Partnership for NYC
  • Professors Nan D. Hunter, Suzanne B. Goldgberg et. al.
  • Political Science Professors
  • Religious Organizations
  • Scholars of the Constitutional Rights of Children
  • Services and Advocacy for Gay, Lesbian, Bisexual and Transgender Elders et. al.
  • Survivors of Sexual Orientation Change Therapies
  • Utah Pride Center, Campaign for Southern Equality, Equality Federation and Twenty-Five Statewide Equality Organizations
  • Women’s Law Center et. al. (you can read pdf’s of each brief here)

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