The Justice Chronicles Volume 8: Maybe now DOMA is Doomed

With all the attention given to the Presidential campaign, an important story isn’t getting as much publicity as it should. On October 18, 2012 the United States Court of Appeals for the Second Circuit handed down a ruling in the case of Windsor v. US that the Defense of Marriage Act or DOMA is unconstitutional.

In 1996 the Congress passed, and President Clinton signed, DOMA. Among other things DOMA prohibits the Internal Revenue Service from recognizing same sex marriages, even if the couple were legally married.

I’m taking the facts of the case from the opinion itself. Edith (Edie) Windsor and Thea Spyer were legally married in Canada in 2007 (though they had been a couple for 44 years). Thea died in 2009 in New York, and had they been a heterosexual couple, Edie would have been classified as the surviving spouse for tax purposes. Because of DOMA their marriage wasn’t recognized by the IRS and Edie owed $363,053 in taxes to inherit Thea’s estate. Under federal tax law, a spouse who dies can leave assets, including the family home, to the other spouse without incurring estate taxes, but because of DOMA Edie was not considered Thea’s spouse and is responsible for those taxes. Edie sued in federal court to return the $363,053, arguing that she was Thea’s spouse; in 2011 New York began allowing same sex marriages and the state recognized their union.

There are many nuances to this case, but essentially the court found that DOMA is “an unprecedented intrusion into an area of traditional state regulation” as the states grant marriage licenses.

Clearly the issue of gay marriage is going to the Supreme Court in either this session or the next. But I have to confess a chuckle over this case as it’s decided on the basis of federal intrusion while the Republican Party consistently reminds us that they are the party to “get government off our backs.” I’m guessing they don’t want government off our backs on this one.

Personal note: DOMA claims to protect traditional marriage. As a heterosexual married man, can anyone tell me how gay marriage threatens my marriage? If so, I’m happy to support DOMA. In the meantime I’m on the side of opposing homophobia.

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