The second judge in a matter of days has found the Defense of Marriage Act unconstitutional. It’s a fast-growing club. Three other judges who’ve parsed the misbegotten statute reached the same conclusion.
The Republican-dominated House of Representatives should give up its doomed defense of the discriminatory law, a task it took up after the Obama administration said in February it would no longer do it.
In the most recent case, Edith “Edie” Windsor sued the federal government for refusing to recognize her marriage to Thea Spyer. The couple married in 2007 in Canada, but were together a total of 44 years. When Spyer died in 2009, her estate normally would have passed to her spouse without any estate tax. Because DOMA defines marriage as the legal union of one man and one woman, Washington refused to acknowledge Windosr’s marriage. So the widow had to pay $363,000 in federal estate taxes.
As Windsor argued, the law requires the government to treat same-sex couples who are legally married as though they aren’t. That’s insulting, bigoted and, according to the federal judge who ruled June 6 in Manhattan, an impermissible intrusion upon the states’ business of regulating domestic relations.
One week earlier a federal appeals court in Boston ruled denying same sex couples federal benefits enjoyed by heterosexual couples — such as the right to reduce their tax burden by filing jointly, or to collect Social Security survivor’s benefits — violates the Constitution’s guarantee of equal protection of the law.
Congress should dump DOMA. If it doesn’t, the courts will.