For those of us old enough to remember the passage of the Defense of Marriage Act — and then-President Bill Clinton’s craven boasting about it in Christian radio ads during the 1996 campaign — this week brought vindication, a victory unimaginable just a few years ago and more than a few tears of joy.
In a 5-4 ruling, the Supreme Court declared that DOMA “is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.”
Justice Anthony Kennedy added to his considerable pro-gay legacy penning the majority opinion joined by Justices Sonia Sotomayor, Ruth Bader Ginsburg, Elena Kagan and Stephen Breyer.
In it, Kennedy issues a bold, broad ruling and gets at the heart of the matter: the indignity that DOMA visited upon our relationships.
He writes, “DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no 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. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.”
It’s a refreshing and honest take on the impact of DOMA, which has stigmatized gay and lesbian couples for 17 years and done real harm to our families. Kennedy’s opinion at long last recognizes this basic fact. The stories of DOMA’s impact on our community have formed the basis for literally hundreds of Blade stories over the years. Many of those stories involve serious life-changing consequences as in survivors like the courageous Edith Windsor facing financial ruin after the death of a partner. But those dark days are over. Kennedy touches on the broad reach of the decision in his opinion.
“By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound. It prevents same-sex married couples from obtaining government healthcare benefits they would otherwise receive. It deprives them of the Bankruptcy Code’s special protections for domestic-support obligations. It forces them to follow a complicated procedure to file their state and federal taxes jointly.
“DOMA also brings financial harm to children of same-sex couples. It raises the cost of health care for families by taxing health benefits provided by employers to their workers’ same-sex spouses. And it denies or reduces benefits allowed to families upon the loss of a spouse and parent, benefits that are an integral part of family security.”
Kennedy rightly points out that the only reason DOMA came about was anti-gay animus.
“The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity 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.”
More vindication for the scores of activists, lawyers, politicians, journalists, bloggers and everyday Americans who’ve been fighting this most odious of laws for nearly two decades.
In Justice Antonin Scalia’s overwrought and predictably curmudgeonly dissent, he fears judicial overreach.
“It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere ‘primary’ in its role.”
He goes on to say the question of same-sex marriage “should be resolved primarily at the state level.”
That is now an open question, as same-sex couples in California rejoin the growing group of now 13 states and D.C. that have enacted marriage equality. Will a gay couple in Texas sue the government for marriage rights? Has Kennedy set the stage for a Loving v. Virginia-type showdown for the gay community?
Tantalizing questions for the future. For now, it’s time to celebrate a victory nearly 20 years in the making.
Kevin Naff is editor of the Washington Blade. Reach him at firstname.lastname@example.org.