On June 24, New York took a historic step forward by becoming the sixth state in the nation to embrace the freedom to marry for same-sex couples, more than doubling the number of Americans who now live in a state where gay couples may legally wed. The measure was championed by Governor Cuomo, supported by a majority of New Yorkers and approved in a bipartisan vote in the state legislature. Now, thousands of loving and committed same-sex couples across the state can share in the joy and respect of marriage, as well as some of the critical safety net of rights, protections and responsibilities that marriage will bring to them and their families.
But while this is certainly a moment to celebrate, same-sex couples in New York are not out of the woods yet. Because of the “Defense of Marriage Act” (DOMA) passed by Congress in 1996, the federal government does not honor any same-sex marriages performed in the states. So as thousands of gay and lesbian couples are married in New York over the coming months, the federal government will treat those legally married couples as strangers and deny them more than a thousand federal rights and protections of marriage, including Social Security spousal benefits, fair tax treatment and the right to sponsor a spouse for a visa or citizenship.
In other words, same-sex couples face two layers of marriage discrimination in the United States, at both the state and federal level. And even as more and more states end the exclusion of gay couples from marriage, DOMA continues to inflict federal marriage discrimination on tens of thousands of legally married couples. Before DOMA passed in 1996, the federal government had a long tradition of honoring all valid marriages performed in the states, but with the passage of DOMA, Congress created a gay exception to that tradition.
When DOMA was signed into law, same-sex couples could not legally marry anywhere in the United States, or in the world. But now that same-sex couples are free to marry in a dozen countries and in six US states and the District of Columbia, DOMA’s harm is very real. From Des Moines to Boston, legally married same-sex couples are deprived of critical Social Security spousal benefits, even though they’ve paid into the system their entire lives. Thousands of bi-national couples are facing a cruel choice that no one should have to make, between leaving the country they love and being separated from their spouse. And thousands more are harmed by unfair tax treatment, like 81-year-old New Yorker, Edie Windsor, who faced a $363,000 estate tax bill— which no heterosexual spouse would have to pay—after her spouse of 42 years passed away. The harm that DOMA imposes will only grow as more and more same-sex couples in New York and across the country get married.
More than a dozen cases have been filed in federal courts challenging DOMA’s constitutionality, and last year a district court judge in Massachusetts, appointed by Nixon, ruled that DOMA is unconstitutional under the Fifth Amendment’s promise of equal protection under the law, as well as under the separation of powers guaranteed by the Tenth Amendment. With those cases and many others climbing the judicial ladder, President Obama and the Department of Justice announced earlier this year that because sexual orientation discrimination must be presumed unconstitutional, DOMA is indefensible, and the Department of Justice will no longer defend the discriminatory law.
President Obama has also repeatedly called on Congress to repeal DOMA. And earlier this year, the Respect for Marriage Act was introduced in both the Senate and House of Representatives. The bill would repeal DOMA and restore the federal government to its long tradition of honoring all valid marriages, without a gay exception. The legislation now has twenty-five co-sponsors in the Senate and more than 100 co-sponsors in the House, and a coalition of lawmakers and advocacy organizations, including Freedom to Marry, is recruiting new sponsors and new support for the bill each week. Even DOMA’s original backers—President Clinton, who signed the bill into law, and Republican Congressman Bob Barr, who authored the law—have had a change of heart. They both now support the repeal of DOMA and the freedom to marry for same-sex couples.
Ultimately, it will be up to Congress or the Supreme Court to overturn this discriminatory law. And drawing on the history of other social justice movements in the United States, we know that federal decision makers will look to the states and public opinion as they decide when and how to act. So with a majority of Americans supporting the freedom to marry but forty-four states continuing to exclude same-sex couples from marriage, it is more important than ever that we continue the work of winning more states and growing majority support for marriage.
As federal challenges to DOMA and state-level discrimination, like Proposition 8, climb toward the Supreme Court, we have only a few years to rack up more wins in the court of public opinion and in the states. But with the wind of New York in our sails, we have a real shot at winning marriage in more states such as Maine, Oregon, Maryland, Rhode Island and Washington, and pushing past the stepping-stone of civil union to marriage in Illinois, Hawaii, and Delaware. By winning the freedom to marry in more states, we will make life better for thousands of families, while sending a strong signal to federal decision-makers that the time to overturn DOMA has come.
