The Defense of Marriage Act (DOMA), signed into law by Bill Clinton in 1996, has long been the bane of LGBT activists. This law defines marriage as between one man and a woman. Section 3 of DOMA bars the federal government from recognizing same-sex unions, even if said unions have been legalized by individual states. As well, this law determines that the word ‘spouse’ in all legislation shall be defined narrowly as a partner of the opposite sex. 1,138 federal programs have marital status as a criterion in determining eligibility for benefits, according to the Government Accountability Office. Thus, same-sex couples are unable to jointly file taxes or declare bankruptcy, and are ineligible for certain social security benefits and access to health care.
John Rawls, in A Theory of Justice, introduced the concept of the “veil of ignorance.” He wrote that when formulating policy, one must remove all personal biases and consider the policy from the perspective of the lowest strata of society – those that will be affected these decisions.
The Obama administration, recognizing the explicit discrimination based on sex and sexual orientation in Section 3, announced on February 23 that the Department of Justice would no longer defend the law’s constitutionality. The President noted two cases in particular that changed his perspective on the DOMA. One case is not only a convincing legal argument, but also contains a poignant human back-story that fully exhibits the costs unjustly borne by the adversely affected.
Edie Windsor and Thea Speyer met in 1963 in Greenwich Village – an era when public attitudes towards homosexuality were more hostile than the present day. From all accounts, they went together like peas and carrots. In 1967, Thea popped the question and Edie accepted. However, opportunities for these two women to have their union officially recognized were limited – in the same country embraced the Kardashian/Humphries sham and Britney Spears’ (among many others) short-lived Vegas marriage.
Complicating the matter was the deterioration of Thea’s health. At age 45, Ms. Speyer developed MS, which confined her to a wheelchair. After this, Edie took on the role of primary caretaker for Thea in addition to that of a supportive partner. In 2007, the pair married in Toronto, putting a capstone on their relationship after an engagement that lasted 40 years. A short movie about their mutual devotion, relationship, engagement and marriage was made: “Edie & Thea: A Very Long Engagement.” New York State recognized their marriage, but the federal government did not. Sadly, Thea passed away in 2009 due to progressive paralysis brought about by MS. Deprived of her partner, Edie suffered a heart attack shortly thereafter, and was diagnosed with a chronic heart condition.
Naturally, Thea left her estate to her lifelong partner and wife. Under federal law, a spouse does not generally owe estate taxes on his or her inheritance from the deceased. However, the federal government levied estate taxes in the amount of over $363,000 against Edie in accordance with the Defense of Marriage Act.
Edie refused to take this penalty lying down and had the fortitude to take up her own cause. With her movie and extensive documentation, she is certain that the federal government will affirm her partnership as what it was: a marriage. Ms. Windsor filed suit to recover the estate taxes she paid, plus interest. Her most recent legal victory occurred on June 6, when the District Court from the Southern District of New York found the DOMA to be unconstitutional.
The court’s ruling rested on a straightforward constitutional amendment and tenet of basic human decency. The Fifth Amendment provides equal protection under the law, and is violated by Section 3, which overtly discriminates, with a real economic impact, on the basis of sexual orientation. Sometimes, I really wonder if conservatives stopped reading the Bill of Rights after the Second Amendment…
Even the Bipartisan Legal Advisory Group, commissioned by House GOP leadership to defend the DOMA, conceded the obvious: if Speyer had been married to a male, the estate would have passed to him without a federal tax.
Since the June 6 victory, Edie’s legal team – which includes the firm of Paul, Weiss, Rifkind, Wharton & Garrison, the ACLU and the NYCLU – has petitioned to have the case heard by the Supreme Court instead of the Court of Appeals for the Second Circuit. Edie’s health remains fragile, and she fervently desires to have her questions answers and taxes returned before she passes.
The petition makes several compelling arguments and counter-arguments to the opposition. The DOMA represents the first time the federal government sought to regulate a marriage’s validity, a matter traditionally left to the states. As well, the DOMA has no impact on heterosexual couples, so it can hardly be viewed as a disincentive to heterosexual marriage. The contraception debate, where a bunch of men determined policy affecting women’s reproduction and health, shows the extent to which flawed rationale proliferates. Courts have produced different results in Section 3 DOMA lawsuits, with six courts equally split between affirming and denying the law’s constitutionality.
The most artfully argument employed by Edie’s team is to cite a quote that Chief Justice Roberts also referenced in his ruling on health care. The Chief, and in turn Ms. Windsor’s team, cited an excerpt from an opinion from 2010, which argued that while “legislative novelty is not necessarily fatal,” sometimes “ ‘the most telling indication of [a] severe constitutional problem … is the lack of historical precedent’ for Congress’s action.” Imitation is the highest form of flattery, or in this case, irony.
After recognizing the inherent inequities in Section 3 of the DOMA, President Obama’s support for the LGBT community has not abated. On Good Morning America, he declared that he believed couples of the same sex should be able to get married. He credited the open-mindedness of his daughters, whom have friends with homosexual parents, as a reason for his evolution. In addition, he spearheaded the repeal of DADT, which allows gays and lesbians to serve openly in the military.
The upcoming election is a choice, not a referendum, and decisions will be made on matters other than just the economy. In the spirit of comparative disclosure, let’s investigate which positions Mitt Romney has held on this issue. In 1994, he promised LGBT that he would “fight for full equality” more than Ted Kennedy. As Governor, he sought to block gay marriage after it was ruled legal by the state’s highest court, yet managed to alienate both sides, simultaneously displeased with either his lack of tolerance or lack of bigotry. During the primary season, Mitt championed the need to enforce DOMA and announced his support for an amendment to the Constitution to ban gay marriage. However, he has recently referred to gay marriage as “a state issue.” The GOP nominee has also signed the National Organization’s for Marriage stringent five-part pledge which holds gay marriage as anathema.
Bottom line: he’s no friend to equality. He lives behind a veil of ignorance of an altogether different nature than the one Rawls suggested.
And he’s no friend to Edie.
Guest post by Lucas J. Kawa of the blog Young, Green and Blue.