DOMA: Why It is the Worst Federal Law Of This Generation

A soldier’s wife disappears, and their marriage evaporates. This now is happening across the U.S. armed forces. Charlie Morgan graduated high school, enlisted in the U.S. Army in 1982, served 10 years, spent a year in Kuwait during the Gulf War, re-enlisted in 2004, and in 2008 moved to Durham, NH to take a full-time position with the Army National Guard. But after achieving rank CW2 (Chief Warrant Officer second class), and getting close to retirement as an Active Guard Reserve Education Officer, came bad news: a diagnosis of incurable cancer.

Charlie died on Sunday, February 10th, leaving behind a wife, Karen, and a 4-year-old daughter, Casey Elena. Charlie and Karen were committed to each other for 15 years. They had a legal, civil marriage in the state of New Hampshire. They were raising a daughter together.

The Army knew all about Charlie, Karen, and Casey. But unlike other military spouses, Charlie’s wife never saw any of the housing, food, health care, dental care, separation pay, tuition, or other major benefits routinely paid to soldiers to support their spouses. And the Army says that Charlie’s wife will never see a single penny of the housing, health care, tuition, or other survivor benefits that Charlie earned, and that the military routinely pays to other survivors whose spouses die while on active duty. The Army, despite knowing of their long, legal, civil marriage, classified Charlie as single and as never married. Despite knowing that Karen is a real, live person, the Army insists that she has never existed at all.

Why?

Under the federal Defense of Marriage Act (DOMA), Charlie never married anyone, and there is no Karen. Why does the Pentagon ignore any soldier’s legal, civil marriage, and deny any soldier’s actual, living wife? Can the Defense Department do this to a member of the U.S. armed forces?  Yes, it can. 

This happens because a federal law says that some marriages — and some spouses — simply don’t exist.

Charlie and Karen are both women. Even with a legal, civil marriage, the effect of the one-sentence DOMA is that whenever two spouses are the same gender, then the marriage never occurred, the couple never existed, and the spouses are not real. As a result, the Army ignored Charlie’s marriage, and Karen’s existence, because the Department of Defense can’t issue pay or benefits for couples or spouses that don’t even exist to begin with. In the eyes of some states, they and their marriage exist, but in the eyes of the federal government, the marriage — and the spouses — do not.

Congress created 274 benefits for active duty personnel and 92 benefits for veterans. But when spouses are the same gender, many of those benefits partly or completely evaporate.

While suffering from terminal cancer, Charlie Morgan asked for a meeting with Speaker of the House John Boehner (R-Ohio) so that she, a dying soldier, could show him the reality of what DOMA does to LGBT families. At first her requests were refused, but after reporters started asking questions one year ago, she was able to meet with a Boehner staff member. In exhausted gasps, she whispered her last requests of her government: that Republican leaders cease wasting millions of taxpayer dollars defending DOMA cases, and that they stop blocking the repeal of DOMA in Congress.

John Boehner refused.

Not only are 99% of the Republican members of Congress working to keep DOMA in place, but next month their outside lawyers will argue the official Republican defense of DOMA before the U.S. Supreme Court. Meanwhile, Charlie Morgan is dead at 48, just two years shy of full retirement, and her family is receiving not one penny of the many benefits that she earned.

For 18 years, DOMA has punished every same-gender couple that was — or ever will be — legally, civilly married, by denying 1,138 federal rights and responsibilities. These benefits are never withheld from mixed-gender couples, yet the costs to same-gender couples and their children are staggering.

In the compensation packages for soldiers, sailors, airmen, and marines, the benefits are often worth at least as much as the salaries. But for members of the armed forces who are legally married to a same-gender spouse, DOMA denies all the most important spouse-related benefits — housing, medical care, dental care, food, survivor coverage (health care, tuition, indemnity compensation), spouse Social Security, etc. — benefits that are never denied to anyone in a mixed-gender marriage. A same-gender couple loses up to 40% of what mixed-gender couples get, which can reach several million dollars over a full career followed by retirement.

DOMA losses to civilians seem less than losses to military personnel, because civilian earnings are rarely reduced for employees with a same-gender spouse. But retirement still presents nightmare scenarios sometimes costing several million dollars. 

Consider the case of Edie Windsor and her legal wife, Thea Spyer. They bought a home, lived in it their entire lives, paid off the mortgage, and then retired on small pensions. Engaged for 40 years, they married in 2007, two years before Thea passed away. As with most couples, Edie inherited everything that they’d jointly owned.

But DOMA denies the existence of same-gender couples, so the I.R.S. ignores such marriages, ignores the couples, ignores the surviving spouses, and treats all inherited property and cash as taxable income, often demanding that nearly half of it be given to the government — immediately. Edie’s monthly income was modest, but the U.S. government billed her for over $350,000, a bill that she would never have had to pay if her marriage were recognized under federal law the same way that all mixed-gender marriages are.

Another major penalty is the one just for binational, same-gender couples. Whereas any mixed-gender couple can obtain permanent residency for a foreign national spouse, every same-gender couple is denied this opportunity, resulting in a constant threat of deportation, or both spouses having to leave America just to stay together, or the couple having to permanently separate.

Presently, there are at least 14 DOMA-related lawsuits in progress around the country. In 2011, the U.S. Department of Justice announced that, under the procedures established by the courts, no defense of the constitutionality of DOMA is possible, and it ceased all such efforts.

Normally, that would have overturned DOMA as unconstitutional, and all the plaintiffs would have won. But three Republican Congressmen were determined to prevent any such victories. 

Speaker of the House John Boehner, Majority Leader Eric Cantor, and Majority Whip Kevin McCarthy secretly decided to spend $3 million of the House of Representatives budget to pay outside lawyers to show up in courtrooms around the country and defend the DOMA. They’ve lost virtually every round at every level, which is not surprising. The Department of Justice already declared this law indefensible, and multiple district courts and appeals courts already declared it unconstitutional.

Almost a quarter of a century ago, Republican strategists from the prior generation created DOMA as a campaign tool that would repeatedly elect Republicans and defeat Democrats. That tool was designed with 4 specific purposes:

(1) to draw evangelical Protestant voters who don’t usually vote;

(2) to force Democratic lawmakers to either support DOMA or else risk defeat at the polls;

(3) to make same-gender marriage so inferior that legalizing would be pointless; and

(4) to discourage citizens from ever marrying someone of the same gender, either overseas or at home.

To conceal this decision to oppress LGBT people, couples, and families, Congress called its new law the DOMA (Defense of Marriage Act). Masquerading behind that noble-sounding facade, it passed quickly.

When conceived in the early 1990s, and passed in 1996, DOMA delivered all the havoc and harm that its Republican strategists wanted.  Today, its original authors have recanted, its sponsors have denounced it, former President Clinton decries it, and legislation to repeal it was introduced in March 2011.

So why, two years later, hasn’t it been repealed?

The forces working to keep the DOMA intact are the same forces that created it in the first place: the Republican Party. Of the 279 Republicans in Congress today, 99% are blocking the repeal of DOMA. The Republican-controlled House refuses to even allow a hearing on it. The current Republican Party platform contains a commitment to write DOMA’s discriminatory language directly into the U.S. Constitution. Republican presidential candidate Mitt Romney publicly signed a written promise vowing to do just that.

On March 27, lawyers hired by Republican leaders — and paid for at taxpayer expense — will argue to the U.S. Supreme Court that same-gender couples should not be allowed to inherit as mixed-gender couples can, and that the federal government should continue acting as if same-gender couples don’t even exist, and that this unfairness is perfectly constitutional. In one sentence, here is how they express their rationale:

Denying the existence of same-gender couples (most of whose children are planned via fertilization, surrogacy, foster care, and/or adoption) helps mixed-gender couples (most of whose children are unplanned and unintended), so the federal government should discriminate against same-gender couples, because marriage exists only for children.

If all that sounds convoluted, confused, contradictory, illogical, and unfair, that’s because it is. But it also is the official Republican position, as articulated by their lawyers, in this expansive, expensive, taxpayer-funded, 76-page brief.

Last week, the Department of Defense confirmed that all military pay and benefits will be issued equally and fairly to all members of the armed forces, except for the pay and benefits that federal law specifically prohibits for personnel with same-gender spouses. The same day, President Obama echoed that commitment in his State of the Union address. The president and the Department of Defense have done everything that they can legally do to treat same-gender couples as well as everyone else.

Fair federal treatment of same-gender couples could be achieved in one of two ways. The first is a repeal of DOMA by Congress, which, for 18 years, the Republicans have refused to even consider. The second is a sweeping decision from the Supreme Court in one or more of the 14 pending cases. But do the mostly Republican, mostly Roman Catholic Supreme Court justices have any interest in remedying the DOMA situation? Whether they do will be apparent in their decision, to be published in July.

In the meantime, every American who Charlie Morgan fought for — which is everyone — owes it to her, and to her surviving family, to get Congress to retroactively repeal the villainous Defense of Marriage Act so that all LGBT people, couples, and families — military and civilian — are always treated fairly.

Ned Flaherty is a Projects Manager at Marriage Equality USA, an organization which has worked with Log Cabin Republicans on marriage equality campaigns. In this article he represents himself, not either organization. He writes from Boston, Massachusetts.