Alaina Mabaso's Blog

So gay marriage is legal in the US now, right? The Supreme Court decided we can’t discriminate against gay couples anymore because the federal Defense of Marriage Act (which says the terms “marriage” and “spouse,” for federal purposes, apply only the relationship of a man and a woman, not partners of the same sex) is unconstitutional, and it’s unconstitutional because it’s mean, right?

Not quite.

Maybe you were thrilled about the decision, or maybe you see America’s downfall.  But if you didn’t, uh, have time to read the whole decision written by Justice Kennedy, here is an easy-to-understand round-up of what it actually says.

(Disclaimer: I am no legal scholar; I’m just a writer and a thinker who had a few hours to spare this week.)

Whose love story is behind this court case?

New York residents Edith Windsor and Thea Spyer met and fell in love in 1963. New York allowed them domestic partnership status thirty years later. In 2007, they went to Canada to get married, and since New York made same-sex marriage legal in 2011, their marriage was recognized by the state.

So what does that have to do with DOMA and the Supreme Court?

In 2009, Spyer died and left everything she had to her wife. But the IRS charged Windsor over $360,000 in estate taxes—which she would not have had to pay if theirs had been a heterosexual marriage. But since New York recognized the marriage while the federal government did not, Windsor was in a huge legal and financial bind, which she claimed violated her Fifth Amendment rights by taking away her property without due process of law.

Windsor sued the IRS for a refund of the money, but the IRS declined to pay it, because Windsor didn’t qualify as a spouse under DOMA. So the Attorney General said to the Speaker of the House, “Hey, FYI, the Executive branch of the government has decided not to defend DOMA in court anymore.” And then the House of Representatives got its Bipartisan Legal Advisory Group into the action, to defend DOMA in court. As the case made its way through the system, both the District Court and the Second Circuit said Windsor was right.

But the IRS never paid up. And here we are.

Why didn’t some other disadvantaged gay couple challenge DOMA in federal court before this?

It’s tricky. For the court to address the issue, there has to be a really specific damage or injury to the plaintiff, a problem the court could fix. It can’t be a hypothetical or un-provable gripe with no concrete solution.  But Windsor’s situation—a tax refund she should have gotten—fit the bill.

So did the Supreme Court strike down all of DOMA?

Nope. Part of the law says that states which don’t allow gay marriage can still refuse to recognize the marriages of gay people performed in states that do allow gay marriage, and that law is still on the books. The crucial part of DOMA that has been overturned is the section that stops the federal government from recognizing same-sex marriages performed in states where it’s allowed.

Essentially, it ended this weird, expensive legal twilight for gay couples in Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, Washington, D.C., Rhode Island, New York, Delaware, Minnesota, Maine, Maryland, Washington State and California (now that Prop 8 was overturned by the Supreme Court): they no longer have to live as married people by state law, but single people by federal law.

What’s the Court’s reasoning?

It’s a states’ rights issue, the Justices said. The federal government has always given power to the states to define and regulate marriage however they choose inside their own borders (within the Constitutional rights of everyone, i.e., states can’t outlaw interracial marriage anymore). The tradition of marriage laws in this country says that laws about marriage can vary from state to state, but they have to be consistent inside each state. Ergo, states have every right to recognize gay residents’ marriages if the states so choose, and make those marriages equal to heterosexual marriages, but when the federal government swoops in and says, no, those gay marriages aren’t legal, suddenly we have a situation where married couples within the same state are being governed by different laws according to their sexuality.

What did the Court say about the damage to gay couples?

They said it’s illegal for the federal government to try to discourage individual states from legalizing same-sex marriage if they want to, and that DOMA specifically seeks to “injure” and discriminate against a whole class of citizens that some states are trying to protect, resulting in a stigma and disadvantage for same-sex couples that is the “essence” of the law, and not just its “incidental” effect.

Justice Kennedy writes that DOMA makes some perfectly legal state-sanctioned marriages “second-tier,” while it also “humiliates” the kids of gay couples. This law doesn’t protect citizens or their rights, it restricts and disables them.

Besides gay marriage, what are some examples of how state laws about marriage vary?

These include differences in the age a person is allowed to get married, or whether or not you can marry your cousins.

So has the federal government ever interfered with state marriage laws before DOMA?

Yeah. For example, if you marry a foreigner just so he or she can get citizenship and the federal government finds out, they’ll deny your spouse citizenship, even if your home state still recognizes the marriage. And the federal government has decided that even if there are some states that don’t recognize common-law marriages, surviving partners of these relationships are still entitled to federal Social Security spousal benefits.

So what’s the big deal about DOMA, if there’s a precedent for federal rules about marriage?

Other federal laws about marriage have been really specific and limited, the Justices said, and the federal Congress was within its rights there, but DOMA is so darn broad that it affects over 1,000 separate statutes.

DOMA fundamentally affects tons of everyday issues like social security, housing, taxes, copyright laws, veteran’s benefits, healthcare, bankruptcy, even criminal statutes. For example, it’s a federal crime to assault, kidnap or murder the immediate family member of a US official, judge or federal law enforcement officer—but as long as DOMA was in effect, that applied only to families of heterosexual couples.

But rights come with responsibilities, don’t they?

You bet. Before the DOMA ruling, if one person in a same-sex marriage was applying for student loans, he or she didn’t have to factor in his or her spouse’s income in the paperwork, while heterosexual married couples do. Federal financial ethics laws that govern gifts and benefits to the spouses of Senate employees didn’t apply to gay couples, and the same went for financial disclosures of the spouses of gay people seeking office.

So as long as DOMA refused to recognize gay spouses, these partners could actually skirt important laws that heterosexual couples are subject to.

OK, but doesn’t this ruling set some troublesome precedents?

Maybe. Again, it’s tricky. The Obama White House decided it didn’t want to defend DOMA in court even though it was still law. In other words, “the Executive’s failure to defend the constitutionality of DOMA is based on a constitutional theory not yet established in judicial decisions.”

Some say that instead of seeking his constitutional agenda through the court, the President had much better rely on Congress for amendments and repeals.

Don’t worry, the Justices said. This is not a routine case, and it does not set a precedent that will allow Presidents to run to the Judiciary, instead of the Legislature, to get any little thing they want.

How can the US government decide fairly on a case that could change its own laws?

One the one hand, is it ok for a branch of the US government to decide a case that would invalidate its own law and require it to pay money to the plaintiff? Talk about a conflict of interest.

But what’s the alternative? If the Supreme Court didn’t take this case, it would be like saying the President’s sympathy for the plaintiff trumps a judicial review. And that would violate separation of powers, because the Judiciary wouldn’t be as important as the Executive.

Which Judges were responsible for this ruling?

Justices Sonia Sotomayor, Stephen G.  Breyer, Elena Kagan, Anthony Kennedy and Ruth Bader Ginsburg formed the majority opinion striking down the article of DOMA in question, and Chief Justice John Roberts joined Justices Antonin Scalia, Clarence Thomas and Samuel Alito for the dissent.

What are your thoughts?