In the Marriage Business, Government Should Bolster, Not Limit Equality

November 30, 2012

by Jeremy Leaming

It’s hard to say why marriage matters, why it is different, Edie Windsor says in an ACLU video documenting her struggle to overcome the federal government’s discriminatory treatment of same-sex marriages. But, she continued, marriage is different and does matter. “It has to do with our dignity,” being able to be who we are openly, she said.

“It was a love affair that kept on and on and on,” Windsor said in describing her deep, loving and lasting connection to Thea Spyer. The couple, more than 40 years into their relationship and after Spyer received a dire diagnosis related to multiple sclerosis, were married in Canada. When Spyer died in 2007, Windsor was required to pay inheritance taxes since the federal government because of the Clinton era law, the so-called Defense of Marriage Act, does not recognize same-sex marriages. With the help of the American Civil Liberties Union, Edie lodged a lawsuit against DOMA arguing, in part, that it violates the Constitution’s equal protection clause.

In the fall, the U.S. Court of Appeals for the Second Circuit ruled in favor of Windsor, concluding that DOMA does violate the equal protection rights of lesbians and gay men. Edie’s case, Windsor v. U.S. is one of several the Supreme Court could take for review this term. The justices met in a private conference Nov. 30 where the marriage equality cases could have been considered. SCOTUSblog’s Lyle Denniston reported earlier today that the justices “took no action” on any of the same-sex marriage cases that have wended their way through the federal courts. Denniston notes that nothing has “ruled out the possibility that some actions on same-sex marriage could be announced” on Monday. Or it could be, Denniston continues, that the high court will need more than one conference meeting to “decide how to proceed” on handling the marriage equality cases.

Windsor’s legal action is among ten cases raising marriage equality and related issues before the justices. The U.S. Court of Appeals for the First Circuit also ruled against DOMA, though taking a different path to finding a section of DOMA unconstitutional. There is also the case involving California’s Proposition 8, a ballot measure barring same-sex marriage in the state. The First and Second Circuit opinions, however, affect swaths of the country and would have more of an impact on the marriage equality debate, than deciding whether the Ninth Circuit erred in striking California’s blatantly discriminatory Proposition 8.

SCOTUSblog publisher Tom Goldstein wrote that the marriage equality cases “are the most significant cases these nine Justices have ever considered, and probably that they will ever decide.”

The cases, Goldstein wrote, “present a profound test for the Justices’ judgment. The plaintiff’s claims are rooted in the fact that these laws rest on an irrational and invidious hatred, enshrined in law. On the other hand, that describes some moral judgments. The Constitution does not forbid every inequality, and the people must correct some injustices (even some grave ones) themselves, legislatively." (Voters and lawmakers in a number of states have moved to strike the injustice of prohibiting same-sex couples from wedding. On Election Day, voters in Maine, Maryland, Washington and Minnesota supported marriage equality.)

As long as DOMA stands, however, same-sex marriages though recognized in some states will continue to receive discriminatory treatment from the federal government. Many of the cases advance compelling arguments against the national ban on same-sex marriage.

Columbia Law School Professor Suzanne B. Goldberg in an ACSblog post earlier this week said that the Windsorpresents a powerful and personal story of DOMA’s discriminatory effects on lesbian and gay married couples. The couple had spent more than 40 years together, were legally married in Canada and New York recognized the couple’s marriage. But DOMA bars same-sex marriages, so Windsor wound up with a tax bill of more than $300,000.

Many polls suggest the Religious Right’s battle to demonize the LGBT community and to keep discriminatory marriage laws in tact is failing. Whether a majority of justices on the Supreme Court are prepared to invalidate DOMA on constitutional grounds is a whole other story, one which Goldstein alluded.

Marriage equality, as significant as it is, however, is only part of the movement for LGBT equality, with federal legislation still languishing that would bar employers from discriminating in hiring and firing based on one’s sexual orientation or gender identity. Inequities in health care laws, especially ones that undermine the health of transgender persons also continue to fester.

Gays and lesbians, moreover, are hardly united on the importance of marriage to the movement for equality.

I appreciate June Thomas’s take on marriage and its potential impact on a rapidly changing gay culture. Thomas notes in a piece for Slate that she has no interest in having or being a wife. She has, however, experienced a “blissfully happy” same-sex relationship for about 16 years. Like Thomas, I also came out during a time when same-sex marriage simply was not seen as a pressing equality concern. During law school I was far more animated over the government’s reaction to AIDS and its harmful, discriminatory treatment of gay men, many of them falling in great numbers to the epidemic.  

And as Thomas put it, “When people say you can’t go to a party, it’s natural to decide that you’d rather stay away.” I grew up in that culture, gaining a disdain marriage. I saw marriage as a wobbly institution -- at least half of those entering marriage would wind up retaining domestic lawyers to handle divorces.   

But regardless of how one feels about the institution of marriage, the constitutional questions raised by the marriage equality cases are, as Goldstein and others note, of historic significance. As long as the government remains in the marriage business, it must stop barring gay couples from the government benefits attached to marriage. The Constitution’s equal protection clause is not fully realized as long as lesbians and gay men are barred from marriage benefits that straight couples enjoy.