"Defend" Marriage by Respecting Marriages

This morning, the majority on the House Judiciary Committee’s Constitution Subcommittee convened a hearing entitled “Defending Marriage.” The hearing was little more than an opportunity for Defense of Marriage Act (DOMA) supporters in Congress, and anti-LGBT activists, to vent their frustration with the Obama administration for (correctly) concluding that a critical section of DOMA is unconstitutional, and would no longer be defended by the Department of Justice in court. Ironically enough, someone must have forgotten to pass along the message, because almost no pro-DOMA committee members showed up. If the hearing was intended to demonstrate the support of the House of Representatives for DOMA, it was a complete and total flop (the Waterworld of congressional hearings if you will).

When the discriminatory DOMA was passed by Congress and signed into law in 1996, gay and lesbian couples could not legally marry in any state, and it was not until 2000 that Vermont made national headlines with its civil unions law. Today, gay and lesbian couples can legally marry in five states — Connecticut, Iowa, Massachusetts, New Hampshire and Vermont — as well as the District of Columbia.

It may be self-evident, but America is a much different country for same-sex couples than it was in 1996. Today, a recent study from the Williams Institute at the University of California, Los Angeles’s School of Law put the number of legally-married same-sex couples in the U.S. at between 50,000-80,000. With greater visibility comes a higher rate of acceptance, which has proven true in this context as well. A March 2011 poll from the Washington Post and ABC News found that a majority of Americans (53 percent) favored legalizing marriage for gay and lesbian couples.

However, because of DOMA, legally-married same-sex couples in this country (as well as their families) are denied the more than 1,100 federal benefits and protections that are afforded to all married couples. While National Organization for Marriage (an anti-freedom to marry organization) chair Maggie Gallagher seemed to take pains at the hearing to acknowledge the reality that gay and lesbian couples can and do make good parents, she had no problem testifying in favor of a law that denies these families, and children, many important legal protections.

A Congress that is genuinely concerned with the defense of marriage could do no better than extending the 1,100 federal benefits and protections to all of the 50,000-80,000 legally-married same-sex couples and their families across the country. Legislation pending in both the House and Senate — the Respect for Marriage Act (H.R. 1116 and S. 598) — would repeal DOMA in its entirety, and provide all married couples certainty that regardless of where they travel or move in the country, they will not be treated as strangers under federal law.

Someone like 81-year-old ACLU client Edie Windsor should not be punished by the federal government simply because of who she loved and spent her life with. Edie and her life partner, Thea Spyer, got engaged in 1967, a couple of years after becoming a couple, and were finally married in Canada in May 2007. Two years later, after living for decades with multiple sclerosis, which led to progressive paralysis, Thea passed away.

When Thea died, the federal government, because of DOMA, refused to recognize their marriage and taxed Edie’s inheritance from Thea as though they were strangers. Under federal tax law, a spouse who dies can leave her assets, including the family home, to the other spouse without incurring estate taxes. For the simple fact that Edie was married to woman instead of a man, she had to pay a $363,000 federal estate tax that would have otherwise been $0. After decades together, including many years during which Edie helped Thea through her long battle with multiple sclerosis, it was devastating to Edie that the federal government refused to recognize their marriage.

Congress should demonstrate its commitment to the defense of marriage by actually respecting ALL legal marriages and passing the Respect for Marriage Act to finally repeal the discriminatory, unconstitutional and indefensible “Defense of Marriage Act.”

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