Opinion Death of DOMA

After a long history of often virulent persecution of homosexuals,in the 1960s,Americans began to recognise that gays and lesbians deserved fair and equal treatment. This led to their gradual acceptance and a greater willingness among gays and lesbians to “come out” of the closet. As people discovered that some of their friends,their cousins and even their children were gay,they came increasingly to support an end to discrimination against homosexuals. By the early 1990s,people even began to talk seriously about allowing same-sex couples to marry. This horrified those who strongly opposed,usually on religious grounds,such an idea. This led the Congress to enact the DOMA in 1996.

Among other things,the DOMA defined marriage for purposes of federal benefits as “between a man and a woman”. This was a critical piece of legislation,because as individual states began legalising same-sex marriage,the DOMA denied same-sex couples who were legally married under state law federal benefits such as tax deductions,social security and health coverage. The United States vs Windsor case involved a legally married lesbian couple in New York who challenged the constitutionality of the DOMA’s denial of federal benefits to them. In an opinion by Justice Anthony Kennedy,the SC held this provision of the DOMA unconstitutional.

In reaching this result,Kennedy emphasised that he was focusing on the fact that the DOMA is a federal law that is making judgements about what is traditionally a matter of state concern — marriage. He therefore made clear that although the DOMA is unconstitutional,it does not necessarily mean that a state law that denies same sex couples the freedom to marry is also unconstitutional. A state,in Kennedy’s view,can assert legitimate interests in defining the parameters of marriage that are beyond the purview of the federal government. Thus,that issue was left for another day.

Nonetheless,in invalidating the DOMA,Kennedy wrote sympathetically and passionately about those who seek the right to marry: “Marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilisation. That belief,for many who long have held it,became even more urgent,more cherished when challenged… Slowly at first and then in rapid course,the laws of New York came to acknowledge the urgency of this issue for same-sex couples who wanted to affirm their commitment… DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal government… DOMA undermines both the public and private significance of state sanctioned same-sex marriages; for it tells those couples,and all the world,that their otherwise valid marriages are unworthy of federal recognition.”

The SC’s four most conservative justices — Roberts,Scalia,Thomas and Alito — dissented. In their view,both the DOMA and state laws denying same sex couples the freedom to marry are unequivocally constitutional. For them,the issue of same-sex marriage is not a serious constitutional question. As Justice Scalia put the point in his dissenting opinion,“the constitution does not forbid the government to enforce traditional moral and sexual norms.” And that’s the end of that.

For the other five justices — Kennedy,Ginsburg,Breyer,Sotomayor and Kagan — only time will tell. Much of the language in Kennedy’s opinion implies a deep understanding of the profound injustice of denying same sex couples the freedom to marry. But Kennedy also made clear that the Court was not deciding that issue now.

My guess is these five justices will move slowly,but irresistibly,towards that — undoubtedly correct — resolution. For a state to deny same sex couples the freedom to marry plainly violates the constitutional guarantee that no state shall deny to any person “the equal protection of the laws”.

The writer is the Edward H. Levi distinguished service,professor of law at the University of Chicago