With DOMA’s Demise, We Are Citizens

Terrance Heath

We are citizens. That’s what I said to my husband, when I called him moments after getting the news that the Supreme Court struck down a key provision of the Defense of Marriage Act (DOMA). It’s borrowed from a line uttered by Prior near the end of Tony Kushner’s play “Angels in America”: “The world only spins forward. We will be citizens. The time has come.”

Today, the world indeed spun forward, the long arc of the universe bent a little closer to justice, and America took another step toward the promise of “liberty and justice for all.” The time has come, at last.

The gay rights movement saw a significant victory at the Supreme Court Monday, even as the court dodged the fundamental issue of whether marriage is a constitutionally-protected right for all couples, gay or straight.

In a 5-4 ruling in United States v. Windsor, the court struck down a provision of the 17-year-old Defense of Marriage Act (DOMA) that denies federal benefits – like Social Security benefits or the ability to file joint tax returns – to legally married same-sex couples.

“DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment,” Justice Anthony Kennedy wrote for the majority. Kennedy was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

… The practical impact of dismissing the Prop. 8 case is limited. It leaves the lower court ruling striking down Prop. 8 in place, applying statewide at best.

The impact of the DOMA case, however, is clear. DOMA impacts around 1,100 federal laws, including veterans’ benefits, family medical leave and tax laws. There are about 130,000 married same-sex couples in the United States today who up to this point were treated as unmarried as it pertained to those federal laws.

This is an amazing day. Personally, I feel I have seen history come full circle. I was here in D.C., working at the Human Rights Campaign, when the Hawaii case that was the catalyst for DOMA came up. I was here when DOMA passed. I saw the polling research on the marriage issue. No matter how you looked at the numbers, we lost.

Now, I am here to see DOMA fall, and to see a majority of Americans now supporting marriage equality.

Included

But what changes after today? Very little, except everything. Just like the day my husband I were legally married two years ago, we’re going to be pretty much the same family we were before.

Still, we were the same family upon returning home as we were when the day began, except for one important difference. When we left home, we had few of the same benefits and protections as the other families on our street – despite having happily assumed the same responsibilities. Thanks to D.C.’s City Council and Maryland’s state attorney general, when we returned home, we at least had
equal rights and protections in Maryland – and in the community where we live.

Perhaps there is one more change to consider. We are as committed to one another now as we were before Tuesday, yet we’ve become a part of something too. Marriage is, to some degree, a community affair. Vows are usually made in front of others, whether a few witnesses or a room full of people. Sometimes the officiant asks those gathered if they will support the couple committing to each other and the commitment itself – even pledging in some cases to help them keep that commitment.

… Committing to one another and our family connects us more deeply to our community. We chose to be responsible to and for each other, but we realize how vulnerable the people we love are, and how little we can do to protect them at times. So our commitment must extend beyond our front door, to the street where we live and where our children play, to the community – and world – we share with all other families. Being responsible to and for each other is, in a sense, the essence of community.

Making a public commitment to each other, and having that commitment recognized and supported in the same myriad ways our society
supports other families, may not change our relationship to each other very much. But it changes our relationship to the
community, because we’re included in a way we weren’t before. We are today, at least in D.C. and Maryland and a few
more places.

And now, thanks to the Supreme Court, we are included in America in a way we weren’t before.

Changing Everything

After the news of the Supreme Court decision, someone asked me if I’d be going to a celebration tonight. No, unless something changes between now and the close of business, I’m not going to a celebration tonight. I’m going home, where I’ll have dinner with my family, play with the kids, chat with the neighbors, read stories and sing songs at bedtime, and kiss my husband goodnight, like I’ve done every night for 13 years.

In that sense, the Supreme Court ruling won’t change anything much today.

Yet, it changes everything. I haven’t yet read the entire 77-page decision, but some important passages stand out.

DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.
“Congress has enacted discrete statutes to regulate the meaning of marriage in order to further federal policy, but DOMA, with a directive applicable to over 1,000 federal statues and the whole realm of federal regulations, has a far greater reach.”

The Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.DOMA cannot survive under these principles. Its unusual deviation from the tradition of recognizing and accepting state definitions of marriage operates to deprive same-sex couples of the benefits and responsibilities that come with federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of a class recognized and protected by state law. DOMA’s avowed purpose and practical effect are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.

“DOMA’s history of enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence.

DOMA’s principal effect is to identify and make unequal a subset of state-sanctioned marriages. It contrives to deprive some couples married under the laws of their State, but not others, of both rights and responsibilities, creating two contradictory marriage regimes within the same State. It also forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect.”

I am no lawyer, but what these passages mean to me is that Supreme Court saw that the purpose of DOMA was to “harm a politically unpopular group” and to “justify disparate treatment of that group” by attempting to “impose a disadvantage, a separate status and a stigma,” upon same-sex couples. In other words, Congress cannot single out a particular group of Americans and effectively “divorce” them from the laws of the land, and the rights and protections afforded all Americans.

Put simply, equal protection under the law must mean all of us, or it is meaningless. Either we are citizens, due the same rights and bearing the same responsibilities as everyone else, or we are not. If we are not, then much of what we claim to be as a country, and promise to be in our founding documents must be called into question.

But today, my family and I are included without qualification in “we, the people.” We are citizens.

So, we are the same as we were, and we are not. The little details of our lives are unchanged.

Yet, a big changed has occurred, and more changes are to follow for many or families.

The Economics of Equality

Edith Windsor, the 83-year-old widows who launched the lawsuit that sounded the death knell for DOMA, filed suit because she objected to paying $363,000 in estate taxes because DOMA banned the federal government from recognizing her 40 year marriage to Thea Spyer. If they’d been a married heterosexual couple, Theo had been Theo, Edith wouldn’t have been out $363,000.

That’s how the “gay tax” works. Gay couples can’t file jointly, and thus face higher tax bills than their married neighbors. Or that’s how it used to work. Today the Supreme Court repealed the gay tax, meaning that same-sex couples can file jointly. On a personal level it means that my husband and I can and will file joint returns, resulting in a smaller tax bill, and bit more money to spend on home and family.

The implications for the economics of equality are huge. DOMA not only meant that we had to file separate tax returns, but it meant that same-sex partners were not eligible for Social Security or spousal benefits. Coming on the heels of the end of “Don’t Ask, Don’t Tell,” DOMA’s downfall means that service members and their same-sex spouses will have the same access to health care, retirement pay, and death benefits as
other spouses.

It means spousal benefits are no longer taxed in ways that heterosexual spouses didn’t have to deal with. For example, our kids are carried on my husband’s health insurance. Thus he pays for family policy that includes coverage for a spouse. Namely, me. But I have a separate policy through my employer. I had to, because under DOMA I couldn’t touch the health benefits my husband has been paying for,. The minute I did, those benefits would become taxable, thanks to DOMA. Now, come January I’ll start using the coverage from my husband’s health insurance, and start saving even more.

If all this talk of dollars and cents seems unromantic, well, it’s important.

What family, in this economy, doesn’t have to worry about dollars and cents? Very few, including gay families. Forget the stereotypes of the “wealthy gay elite.” A study released earlier this month by the Williams Institute shattered that myth with its finding that LGBT Americans are more likely to be poor than their heterosexual counterparts.

Key findings include:

• In the American Community Survey, 7.6% of lesbian couples, compared to 5.7% of married different-sex couples, are in poverty.

African American same-sex couples have poverty rates more than twice the rate of different-sex married African Americans.

• One third of lesbian couples and 20.1 % of gay male couples without a high school diploma are in poverty, compared to 18.8% of
different-sex married couples.

• Lesbian couples who live in rural areas are much more likely to be poor (14.1%), compared to 4.5% of coupled lesbians in large
cities. 10.2% of men in same-sex couples, who live in small metropolitan areas, are poor, compared with only 3.3% of coupled gay men in large metropolitan areas.

Almost one in four children living with a male same-sex couple and 19.2% of children living with a female same-sex couple are in poverty, compared to 12.1% of children living with married different-sex couples. African American children in gay male households have the highest poverty rate (52.3%) of any children in any household type.

• 14.1% of lesbian couples and 7.7% of gay male couples receive food stamps, compared to 6.5% of different-sex
married couples. Also, 2.2% of women in same-sex couples receive government cash assistance, compared to .8% of women in different sex couples; 1.2% of men in same-sex couples, compared to .6% of men in different-sex couples, receive cash assistance.

This ruling lifts the prohibition that barred these couples from the benefits and supports their married, heterosexual neighbors have
enjoyed. In doing so, it can only make the economic lives of these families and others a little easier.

A Long Way To Go

Don’t get me wrong. We still have a long way to go before we are as married in Mississippi or Montana as we are in Maryland and Massachusetts. The Court pretty much left California’s Proposition 8 for dead, but that only leaves twelve more states that legally recognize same-sex marriage. Outside of those states, same-sex couples must, borrow from the words of Justice Kennedy, “live as unmarried for the purpose of state law but married for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect.”

In too many of the remaining 38 states, there are laws banning the recognition of same-sex marriage, and in some cases even the recognition of any same-sex relationship that remotely resembles marriage. In the years to come, some of those laws will be successfully challenged, others will be repealed either by legislatures or referendum. Marriage equality is not yet a reality “from sea to shining sea,” and we have a long way to go before we get there.

But no matter how far we have to go, a step forward still moves us closer to getting there. Today is a step forward, on step closer to becoming the country we claimed to be and promised to be in our founding documents. That is worth celebrating.

Comments