Like “don’t ask, don’t tell,” the Defense of Marriage Act is an artifact of the 1990s based on an irrational fear of gay people.
Like the now-defunct ban on gay and lesbian military service, the statutory ban against the recognition of same-sex unions by the federal government discriminates against individuals based on their sexual orientation without fulfilling any legitimate government interest.
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And like “don’t ask, don’t tell,” it’s time to take DOMA off the books.
A unanimous three-judge panel of the 1st Circuit Court of Appeals found DOMA unconstitutional this week, and their decision was correct, if not final. The judges acknowledged that their decision must eventually be decided by the Supreme Court, but that should not stop members of Congress from considering abolishing the law themselves.
The statute is only a couple of paragraphs long, but it has a long tail that touches hundreds of federal laws and regulations. What it says is that under federal law, only marriages between a man and a woman are recognized, even if a couple lives in a state where same-sex marriage is legal.
A same-sex couple married in Massachusetts can’t file a joint income tax return or collect Social Security survivors’ benefits when one of them dies. If a member of the couple is a federal employee, there is a whole host of benefits denied to the spouse that are freely given to opposite-sex couples married under the exact same state laws.
The law does not prevent same-sex couples from marrying in states where it is legal, but it does penalize them. This is not the equal protection the Constitution promises.
Either by Congress or the courts, DOMA should be wiped off the books. The 1st Circuit ruling makes a strong case for doing just that.
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