Editorial: A defense of fairness act

Editorial: A defense of fairness act
Copyright by The Washington Post
Sunday, July 11, 2010
http://www.washingtonpost.com/wp-dyn/content/article/2010/07/10/AR2010071002534.html


THE DEFENSE of Marriage Act (DOMA) is an exquisitely unjust and unwise law. Passed in the 1990s, the federal statute defines marriage as the union of one man and one woman. In the process, it denies some 1,100 federal benefits even to same-sex couples who live in states that recognize their marriages.

That was true of Nancy Gill, a two-decade veteran of the U.S. Postal Service and resident of Massachusetts, who has been unable to include her spouse in her federal health-care plan. On Thursday, Ms. Gill and six other same-sex married couples in Massachusetts won an important victory when a federal judge ruled a section of DOMA unconstitutional because it unjustly denied the couples federal benefits.

The federal government has typically accepted the standards set by the states to determine marital status. If a couple was deemed legally married by a state, the federal government generally accepted that designation when construing federal benefits. This was true until DOMA, when the identities of the people involved in the marriage -- and not marital status alone -- became germane to determining benefits. Congress determined that this distinction was necessary to encourage "responsible procreation and child-rearing," defend and nurture the "institution of traditional heterosexual marriage," and protect "traditional notions of morality." Judge Joseph Tauro of the U.S. District Court for the District of Massachusetts concluded that Congress's real aim was not so much to protect traditional marriage as to "disadvantage a group of which it disapproves. And such a classification, the Constitution clearly will not permit." Judge Tauro ruled in a separate, companion case that DOMA breached the principles of federalism by usurping states' rights to set marriage standards.

Judge Tauro's decisions are far from airtight. They do not thoroughly explore basic legal questions about standards of review and "suspect class" that are part and parcel of constitutional analysis in this area. We wish that he had been as careful and complete as Ms. Gill and the plaintiffs had been in constructing their case. The judge's relatively lax approach may also be a function of the Justice Department's tepid defense of the statute.

For now, the rulings are binding only in Massachusetts. They may very well be overturned if the Justice Department decides to appeal. In the meantime, they should serve as catalysts for the repeal of the Defense of Marriage Act -- a goal espoused by President Obama. And they should serve as reminders of why discrimination of this kind cannot live side by side with this country's promise of fairness and equal protection.