DOMA Section 3 is Now Dead
With the Supreme Court's ruling in United States v. Windsor, we have ended DOMA's damaging federal discrimination against married same-sex couples and lifted up LGBT people and our nation as a whole. Congratulations to the many who made this happen, including Edie Windsor and her legal team.
As one commentator put it, beyond the words of the decision, listen to the music. The Court's umbrage at the blatant discrimination imposed on all gay people through DOMA is fuel for the work ahead. Now, that work includes undoing the harms caused by the Court's gutting of the Voting Rights Act. Race still matters and tampering with the ability to vote undermines the core tool for participating in our republic.
The Court begins its analysis with "basic due process and equal protection principles." The very first "basic" principle is that a legislator's (dis)comfort level with a group is not a basis for lawmaking or the measure of that group's constitutional rights. The constitutional equality guarantee "must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot justify" different treatment of that group. Lawmakers nationwide: take note. Not a single anti-gay law in this nation has any rational footing. We all come before our government as equals.
In finding DOMA Section 3 unconstitutional, the Court emphatically and repeatedly condemns DOMA's discriminatory purpose and effect. The "essence" of DOMA is "interference with the equal dignity of same-sex marriages. DOMA was Congress putting its "thumb on the scales" to influence state marriage policy. "DOMA writes inequality into the entire United States Code." "DOMA forces same-sex couples to live as married for 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." "DOMA instructs all federal officials, and ... all those persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others." "[N]o legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity."
A quick word on what the decision is not: It is not a federalism ruling that insulates states from the 14th Amendment's promises. The majority opinion particularly noted that it was unnecessary to decide the case on federalism grounds. Windsor is an equal liberty ruling and powerful precedent as we go forward in all of our work, including winning marriage in more states, and ultimately nationwide in a future Supreme Court case.
The Court couldn’t have been so emphatic about DOMA’s discriminatory impact unless it grasped the humanity of gay people. This process began long ago, as evidenced in Lawrence v. Texas, decided exactly 10 years before Windsor. "When at first Windsor and Spyer longed to marry, neither New York nor any other State granted them that right." The collective work of sharing our stories and listening to concerns has led to the discovery of many shared values. While "until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity" as a married couple, for others that "longing" was the "beginnings of a new perspective, a new insight." That new insight was on display in Windsor.
The Windsor ruling is already being implemented by federal agencies, like the Office of Personnel Management, Department of Defense and Department of Homeland Security. The President promised "swift and smooth" implementation of the Windsor ruling, and capable and committed people at the Department of Justice are examining every relevant federal program, statute and regulation to ensure that every implementation step is legally sound.
The federal government should treat you like all other married people if you are legally married and living in D. C. or one of the 13 states where marriage for same-sex couples is legal.
For married couples living in a "non-recognition" state, there will likely be a patchwork of protections available. When it comes to benefits and obligations for active duty military, federal civilian employees and retirees, or in the immigration context, federal officials assess marital status based on the state of celebration - where the marriage was performed - not on the state of residence.
A "state of celebration" rule makes sense in our current society, where people often travel or move for work, to care for family members, or attend school. LGBT legal groups, including Gay & Lesbian Advocates & Defenders (GLAD), are working with the administration to ensure they adopt a place of celebration rule wherever they have the flexibility to do so.
Some important federal laws and regulations take a different approach, assessing marital status based on the state law of residence, and changing laws is never easy. Please learn about the Respect for Marriage Act, pending anew in Congress, which would repeal DOMA from the books in its entirety, and establish "certainty" by adopting a place of celebration rule. The celebration rule would simply apply for federal purposes, and not tell states what marriages to license or respect.
If you have questions about how the ruling affects you, check out the fact sheets on GLAD’s website or contact our Legal InfoLine.
While there are so many to thank, I want to give a shout out to Massachusetts - for breaking the historic marriage barrier in Goodridge; for facing down three-plus years of effort to undo Goodridge with a constitutional amendment, for courageously and successfully challenging DOMA’s discrimination in Gill. As a lawyer for GLAD through all of this, I am constantly inspired by courageous individuals telling the truth, the transformative power of honest human conversations, and the widespread commitment to maintaining the principles at the heart of our national compact. On June 26, 2103, the Supreme Court of our nation vindicated our efforts. Let’s keep going!
Mary L. Bonauto is the director of GLAD’s Civil Rights Project. She litigated the Goodridge case and coordinated the amicus brief strategy in Windsor.