The unsustainable divide of same-sex marriage

If there is anything consistent about US politics, it is that the federal government can rarely get all 50 states to agree on anything. The sheer geographical enormity of the country, not to mention its vast cultural differences, provides momentum for a constantly shifting battle of ideologies that fuels progression. 

It is almost as if former President Bill Clinton had this in mind when he angered the American lesbian, gay, bisexual, transgender and queer (LGBTQ) population by signing the Defense of Marriage Act (DOMA) into constitutional law in 1996. 

DOMA, by its very repressive nature, has indeed forced the issue of state versus federal control of marriage law – but that does not excuse Clinton or his successors for enforcing the most explicitly discriminatory legislation since the racist Jim Crow laws of the segregation era. 

Yet here we are, in 2013, at the cusp of a radical shift in same-sex marriage equality in the US. DOMA’s demise is imminent: the Obama administration has effectively blocked it in the courts, and the global turn of public opinion toward “gay marriage” has even impelled the Queen of England to throw her support behind the LGBTQ community in our struggle for marriage equality. 

Same-sex marriage is now legal in nine US states, the majority of American voters support legalising it across the board, and President Obama called for it in his second inaugural address. Marriage equality is on the way. You can feel it in the air. 

But cultural acceptance is not what is really driving the demise of DOMA. The Defense of Marriage Act will fall because, simply put, it does not work. 

Racial segregation and separate-but-equal

To understand why DOMA failed, how it got to the point of facing repeal at its 16th year, we have to both track its failures and draw a parallel to historical similar legislation that blocked the civil rights movement in the 20th century. 

In fact, drawing parallels is exactly the method employed by Obama in his effort to widen support for marriage equality in his second term. During this January’s inaugural address, Obama referred to same-sex marriage when he said, “Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law for if we are truly created equal, then surely the love we commit to one another must be equal as well.” 

He also referenced Stonewall and repeatedly invoked the subject of slavery and equal rights, stating: “No union could survive half-slave and half-free.” 

DOMA evokes memories of the Civil Rights Cases of 1883, in which the US Supreme Court ruled that equal protection for African Americans under the 14th Amendment was unconstitutional and that individuals and private businesses had a right to discriminate on the basis of race without congressional intervention. This move institutionalised racial discrimination under the law. 

DOMA effectively repeats this “hands off” stance in Section 2, which gives states the optional right to refuse recognition of same-sex civil marriages performed legally elsewhere. Laws and constitutional amendments that give some US states the option to refuse legal rights and contracts awarded to individuals by other states have the effect of dividing the country at cultural, legal and political levels. 

The problem with “optional” state recognition of a federal law is that some states enforce it strictly while others not only recognise same-sex marriage, but also reject the federal law entirely. A Boston court, in May 2012, struck down DOMA for Massachusetts, as New York’s Second Circuit Court of Appeals did for that state in September 2012. 

Divergences in state versus federal enforcement are not really what are killing DOMA; after all, it has been easy enough to strip legally married same-sex couples of over 1,000 federal benefits this whole time. The death of DOMA is rooted in visible, tangible discrepancies in civil rights – a rocky, murky patchwork in which American LGBTQ citizens find themselves subject to completely different levels of enforcement while retaining the same theoretical legal status. 

For example, two same-sex married couples who live in the same apartment in Manhattan might face radically different issues when it comes to taxes and health care, if one of the couples is employed by the private sector while the other is employed by the federal government. Neighbours living under the same state laws can face drastically different federal treatment. 

Portland, Oregon, public attorney Tex Clark is frustrated by the multiple levels of discrimination she has faced. Clark and her partner, photographer Anna Campbell, were married in Vancouver, Canada, in 2012 and returned home to find that neither the state in which they live, nor the federal government, recognised their married status. “We’re nothing according to Oregon [and federal] law,” says Clark, “We’re roommates.” 

This means that Campbell cannot access Clark’s extensive federal employee benefits while opposite-sex spouses of other attorneys can. What makes this especially exasperating is that were Clark employed by a private law firm rather than the federal government, her partner would likely be able to receive spousal benefits with a simple domestic partnership registration. 

Two cases that could crumble DOMA

The case of United States v Windsor, now being reviewed by the Supreme Court, is poised to change all of that. New Yorker Edith Windsor, 83, legally married her partner Thea Spyer in 2007 in Toronto after 40 years of partnership.

Spyer died in 2009 and left Windsor their home in her estate. Windsor was hit with a $360,000 tax bill, most of which she would not have faced were she a heterosexual widow. 

The Internal Revenue Service, being a federal agency, cannot legally give Windsor a surviving spouse tax refund even though the State of New York, which legalised same-sex marriage in 2011, can. The Windsor case directly challenges DOMA, arguing that the federal government cannot deny benefits to couples who are legally married if the US Constitution promises equal protection under the law. 

In a brief filed by the Justice Department, DOMA is said to violate the Fifth Amendment’s equal protection clause in the same way as Bolling v Sharpe, one of the landmark cases regarding racial discrimination in the civil rights era. 

The same arguments are being made in the other major Supreme Court case on marriage equality, this one regarding California’s ban on same-sex marriage known as Proposition 8. The Department of Justice’s brief – filed by the Obama administration – says: “Proposition 8’s denial of marriage to same-sex couples, particularly where California at the same time grants same-sex partners all the substantive rights of marriage, violates equal protection.” 

California’s legal stance on same-sex marriage is deeply convoluted: the state recognises more than 18,000 same-sex marriages performed in California during a brief window of legality pre-Proposition 8, it recognises same-sex marriages performed in other states and countries, and it offers a domestic partnership option that affords couples nearly all of the same benefits as marriage. 

What this amounts to is a state in which some same-sex couples can be married, while others cannot. This is the first time the administration has so overtly tackled the basic nature of civil unions as an alternative to marriage: the same kind of separate-but-equal status that was the defining factor of the post-slavery Jim Crow laws that allowed states to discriminate on the basis of skin colour. 

Proposition 8 was already deemed a violation of the constitution by the Ninth Circuit Court of Appeals; now the Hollingsworth v Perry case just needs to clear the highest court in the country. 

Segregation didn’t work because it divided the country in two and created a legal paradox in terms of equality and civil rights. DOMA does the same. But with Proposition 8 and the Windsor case facing Supreme Court’s favourable decisions this spring, DOMA is destined to become, like Jim Crow, just another shameful pockmark on the American historical record. 

On March 1 alone, over 30 briefs were filed with the Supreme Court in Windsor’s defence, from organisations like the National Association for the Advancement of Colored People (NAACP), the American Bar Association, and a group of 172 members of Congress paired with 40 US Senators. These only add to the myriad other supportive briefs filed since the case was accepted by the court. 

With the backing of the Justice Department itself in addition, there’s almost no way the Windsor challenge can fail. If Windsor wins, DOMA will effectively crumble. States will no longer have the option to discriminate when it comes to recognising the marriages of LGBTQ couples, and the federal government will have to get on board as well. 

Mary Emily O’Hara is a Portland, Oregon-based freelance writer. Until recently, she also worked as a youth programme advocate at Portland’s LGBTQ community hub, Q Center. Her writing can be found here. 

Follow her on Twitter: @maryemilyohara