A group of 212 members of Congress have submitted an historical brief in United States v Windsor, the case challenging the Defense of Marriage Act. Many of those legislators voted for DOMA in 1996, but now they are acknowledging that the law is unconstitutional. The brief says, among other things:
“The goal of maximizing the financial well-being and independence of widows is not furthered by depriving Edie Windsor and others like her of the estate-tax exemption that other married Americans receive. The policy of encouraging employers to provide family health benefits is not served either by denying to employers the tax deduction for providing those benefits to married gay and lesbian couples or by refusing to cover spouses of gay and lesbian federal employees. Our national security is undermined by denying spousal benefits to gay and lesbian servicemembers, especially during periods of armed conflict. Our veterans are dishonored when we deny them the right to have their spouses buried alongside them in our national cemeteries.”
This is the major problem at the heart of DOMA. The arguments in favor of that act, the rationale for adopting it, is not at all furthered by the act itself. It simply is not reasonable or coherent to claim that the government’s interest in encouraging stable families is furthered by denying the rights and protections that they claim furthers that goal to gay couples. That’s why I think it is unconstitutional even if the court applies only the rational basis test, because there simply is no rational basis for the law.
This is a remarkable shift in opinion in Congress, which flows naturally from the shift in public opinion on this question. In 1996, DOMA passed 342-67 in the House and 85-14 in the Senate. It’s so remarkable that it should now be clear that if the Democrats had control of the House, DOMA would almost certainly be repealed and it wouldn’t be necessary to have the courts overturn it. You can read the full brief here.