DOMA at the Supreme Court: Gay Marriage Will Be Found Constitutional in Summer 2013

The Defense of Marriage Act (DOMA) may finally get its day in court. The Supreme Court seems ready to decide whether to “rule once and for all on California's Proposition 8, the 2008 voter-approved ban on same-sex marriage and it could choose to hear up to eight other cases that challenge the 1996 federal Defense of Marriage Act, which bars federal benefits to same-sex couples.” Marriage inequality is wrong, and the Supreme Court has the opportunity to do the right thing and declare the Defense of Marriage Act unconstitutional.

The LGBTQ community is confident that the court will rule in favor of repealing the 1996 law. The law has been ruled unconstitutional in eight federal courts, including the First and Second Circuit Court of Appeals. Additionally, the Obama administration and Attorney General Eric Holder announced that the Department of Justice would no longer defend Section 3 of the act in federal court.

How can the government find it illegal to deny a person a job or the right to serve openly in the military, and a federal offense to assault a person motivated by a victim's actual or perceived sexual orientation and/or gender identity, but perfectly legal to deny spousal survivor’s benefits? Given the legal precedent set by the lower court and the inconsistency of allowing discrimination in the home while outlawing it everywhere else gives the gay community full confidence that the Supreme Court will find DOMA to be unconstitutional and strike down the law.

According to the Human Rights Campaign, “DOMA singles out lawfully married same-sex couples for unequal treatment under federal law, allowing states to refuse recognition of valid civil marriages and denying same-sex couples more than 1,100 federal benefits and protections.” The cases that are under consideration by the court include estate taxes, spousal health benefits, and, in Proposition 8, the legality of same-sex marriage in California.

“Federal appeals courts in Boston and New York have ruled that the 1996 laws unconstitutional. The judges reasoned that it was unfair and discriminatory to deny federal marriage benefits, such as being able to file joint tax returns or receive Social Security survivor benefits, to legally married same-sex couples but give them to their straight counterpart," as Andrea Stone reports at the Cap Times.

The court has the option of making a “sweeping decision that same sex couples have a constitutional right to marry and are entitled to all the rights of married couples, including federal benefits or they can rule more narrowly that it is unconstitutional to deny federal benefits to same-sex couples in states that have legalized same-sex marriage.”

The gay community believes that either way will mark progress in the fight for gender equality. The Declaration of Independence says “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights that among these are Life, Liberty and the pursuit of Happiness.” In the broader sense, the right to love, start a family and marry your partner surely can be interpreted as a natural right. Clearly any right to life, liberty and the pursuit of happiness includes who you choose to marry.

Federal law already prohibits discrimination on the basis of gender and sexual orientation. Obama has repealed Don't Ask, Don't Tell. It is a federal offense to assault a person based on their sexual orientation or perceived gender identity. The natural progression is to now allow gender equality to be extended to include marriage with all its benefits. It is illogical to find it illegal to discriminate against sexual orientation everywhere except when it comes to marriage and marital benefits.

In two cases that are being considered by the Supreme Court judges found that the Defense of Marriage Act violates the constitution. In Gill v. Office of Personnel Management, the judge found that DOMA violated the equal protection of the laws guaranteed by the Due Process Clause of the Fifth Amendment. In Massachusetts v. United States Department of Health and Human Services, the same judge found that DOMA violates the Tenth Amendment and falls outside Congress' authority under the Spending Clause of the Constitution. In a third case, Pedersen v. Office of Personnel Management, the judge ruled that section 3 of DOMA "fails to pass constitutional muster under even the most deferential level of judicial scrutiny.”

Charlie Morgan is a chief warrant officer in the New Hampshire National Guard. She is dying of breast cancer. Because she is a “lesbian married to another woman, her wife will not receive the survivor benefits other military widows get and which she will need to help raise their daughter Casey, 5, after she is gone.” Charlie wants to die knowing that DOMA is dead so that her wife “can be taken care of like the spouses of all her fellow soldiers.”