THE BLOG

Dear SCOTUS: It's Time to Destroy DOMA, the Defense of (Heterosexual) Marriage Act

06/10/2013 05:22 pm ET | Updated Feb 02, 2016

The Supreme Court of the United States is this month expected to announce its ruling in regards to Edith Windsor's challenge of Section 3 of the Defense of Marriage Act (DOMA). A recent national poll indicated that 45 percent of Americans support the maintenance of DOMA, an extremely discriminatory law which denies legally married same-sex couples all federal rights and benefits associated with marriage.

In this same poll only 22 percent of those questioned indicated they had "heard a lot" about the recent DOMA hearing held in Washington DC in March of this year. This serves as a reminder that many people in the U.S.A. may have limited knowledge about what DOMA is or the multitude of ways in which it negatively impacts on legally married same-sex couples. Now is an opportune time to reflect on the damage that DOMA causes to LGBT Americans.

History of DOMA

The Defense of Marriage Act (DOMA) was enacted in 1996 in response to efforts in Hawaii to legalize same-sex marriage. Although signed into law by President Bill Clinton, a Democrat, the introduction and passage of DOMA was a Republican-led project to enforce a heterosexist definition of marriage. The bill was written by Republican politicians and voted for unanimously by the Republican-dominated House and Senate. Since the enactment of DOMA twelve states and the nation's capital have legalized gay marriage.

DOMA is inherently discriminatory in that it fuels the myth that same-sex marriage somehow represents a "threat" to heterosexual marriage to such an extent that a "defense" of it is required. In addition to this symbolic demonization of same-sex marriage DOMA has many real-life consequences for same-sex couples married in any of the U.S. jurisdications that permit gay marriage. Section 2 of DOMA allows states to not recognize same-sex marriages performed in other states. Section 3 of DOMA requires the federal government to define "marriage" as that between a man and a woman in the provision of all federal rights and benefits associated with marriage.

Supreme Court: Windsor v. United States

The vast majority of legal challenges to DOMA have been in relation to Section 3 of the law. In the most high-profile case to date (Windsor v. United States), Edith Windsor initiated legal action against the federal government in November 2010 after being forced to pay more than $350,000 in estate taxes after the death of her wife, Thea Spyer. Windsor's case made its way to the U.S. Supreme Court on March 27 of 2013 and a decision is expected by June 24.

Edith Windsor and Thea Spyer were together for more than 40 years. They married in Canada in 2007 and were recognized as a married couple in the state of New York. When Spyer denied in 2009 Windsor was not able to claim a tax exemption on her spouse's estate as the federal government did not recognize her marriage to a woman. She received a massive tax bill that would never have been issued had she been married to a man. This formed the basis of Windsor's legal challenge of Section 3 of DOMA.

DOMA's Destructive Impact

DOMA prevents legally married same-sex couples from accessing 1,138 federal rights and benefits associated with marriage. Listed below are five examples of the real-world impacts of DOMA and how the lives of same-sex married couples would be improved if the Supreme Court strikes down Section 3 of DOMA.

1) Immigration

One of the most devastating effects of Section 3 of DOMA is experienced by binational same-sex married couples. Immigration is governed by federal law and due to DOMA a U.S. citizen is not permitted to sponsor, for a green card, an international same-sex spouse. Through marriage, straight Americans are able to sponsor an opposite-sex spouse who does not have U.S. residency or citizenship.

Binational same-sex couples are often forced to go to extraordinary lengths in their efforts to stay together. Some seek refuge in the nation of the international partner (if that is possible) while others relocate to third-party countries (which neither spouse is originally from). Many binational couples are forced to live apart indefinitely visiting each other whenever possible. Others have been forced apart permanently through deportation proceedings or the impracticality of sustaining long-distance relationships. If DOMA is struck down U.S. citizens would finally be able to sponsor, for immigration purposes, an international same-sex partner to whom they are married thereby helping these couples to physically stay together.

2) Social Security and Medicare

DOMA impacts negatively on same-sex married couples in relation to Social Security and Medicare benefits, both of which are governed by federal law. Same-sex married couples are denied access to spousal benefit provisions which allow a spouse to supplement their income by drawing on the Social Security benefit of their spouse. When a spouse dies the surviving partner in a same-sex marriage is also prevented from claiming Social Security survivor benefits from the deceased spouse. Futhermore, a person in a same-sex marriage who does not have sufficient work history to qualify for Medicare cannot obtain Medicare coverage based on their same-sex spouse's work history.

Striking down Section 3 of DOMA would allow same-sex married couples to claim the same spousal and survivor benefits associated with Social Security that opposite-sex married couples currently have access to. It would also eliminate discrimination against same-sex married couples in relation to Medicare coverage which can be obtained through marriage when one of the spouses does not have a qualifying work history.

3) Federal Taxes

Although same-sex married couples have access to tax benefits associated with marriage in states that recognize their relationships they are denied access to such benefits at the federal level. Gay couples who are legally married cannot file joint federal tax returns. While being forced to file separate tax returns may financially benefit some couples, others suffer various financial penalties from not being able to file jointly.

Additionally, as highlighted in the case of Edith Windsor, same-sex spouses are denied tax exemptions in relation to the transfer of assets to them from a deceased spouse. These estate taxes can amount to extremely large sums of money, none of which a spouse in a heterosexual marriage would be required to pay. If the Supreme Court overturns Section 3 of DOMA same-sex married couples would be legally able to file joint federal tax returns and would no longer be subjected to discrimination in the application of estate taxes.

4) Family Medical Leave

The Family Medical Leave Act (FMLA) is a federal law which allows individuals to take unpaid leave from work for up to twelve weeks in order to care for a sick or injured spouse. Given that DOMA defines marriage as that between a man and a woman, same-sex married couples are denied rights associated with FMLA. Even though gay marriage is legal in twelve states employers in those states are not legally required to provide unpaid sick leave to a spouse in a same-sex marriage.

Not being able to take time off work to care for a sick or injured spouse -- without the threat of losing one's job -- can cause significant psychological distress. It also forces those impacted to continue to work when they may not be emotionally fit to do so, thereby risking their capacity to perform their job effectively. Striking down DOMA would allow those in same-sex marriages to access the full range of benefits associated with FMLA that people in oppose-sex marriages already have access to.

5) Military Benefits

Don't Ask Don't Tell has been overturned but discrimination against LGBT Americans in the military continues thanks to DOMA. In the last two years a number of LGBT personnel in the military have taken advantage of their new freedom by marrying long-term same-sex spouses. Various military benefits are tied to federal legislation and same-sex couples that include a member of the military are denied all such benefits. These include benefits that are typically afforded to opposite-sex military couples (e.g. housing allowances) and to the individual non-military spouses of military personnel (e.g. medical benefits).

After already being denied the full range of federal benefits associated with marriage that non-military couples are, same-sex married couples which include a member of the military are subjected to an additional layer of discrimination through the non-provision of full military benefits. This shameful injustice would be eradicated by overturning Section 3 of DOMA.

The Quest for Federal Marriage Equality

If the Supreme Court decides that Section 3 of DOMA is unconstitutional much work will remain in order to achieve federal marriage equality. States that do not recognize same-sex marriage will retain the right to do so, courtesy of Section 2 of DOMA. Same-sex married couples that move to states that have bans on gay marriage will still be denied state-level rights and benefits associated with marriage in such states.

More than 70 percent of Americans, however, now believe that (nationwide) legalization of same-sex marriage is inevitable. Striking down Section 3 of DOMA would be a monumental step forward on the path to full marriage equality in the U.S.A. This hideously-named law would lose its power to transmit negative societal messages about gay marriage and same-sex married couples would have access to more than one thousand federal rights and benefits they are currently denied. It's time for the Supreme Court to destroy Section 3 of DOMA and to end the misery this law causes to millions of U.S. citizens and their families. If justice is served we will have one person to thank for helping to change the course of history: Edith Windsor (see the video tribute below).

* This article features non-legal interpretations of the Defense of Marriage Act (DOMA) and its impact on same-sex married couples

* Photos & video by Murray Lipp, Washington DC, 3/27/13