It is to Bill Clinton’s eternal shame that he did not veto the Defense of Marriage Act when he was president and to my knowledge he has never apologized for it, but has simply shifted in his reasons for signing it. It is anticipated that the constitutionality of the law will be decided by the US Supreme Court in its upcoming term, though it has not selected any of the cases as yet.
An important case is currently being adjudicated by a federal Appeals Court in New York, that may be one that is selected.
A three-judge panel in New York today heard arguments from Edith Windsor, who sued over a $363,000 federal tax bill she received after the 2009 death of her spouse, Thea Spyer.
Their marriage, which was performed in Canada, was recognized under the laws of New York, where the couple lived, Windsor’s lawyers said. Spyer’s estate would have been exempt from the taxes if she had been married to a man. A federal judge in Manhattan sided with Windsor in June, finding the Defense of Marriage Act unconstitutional.
The case follows a May decision by a federal appeals court in Boston that the law, which defines marriage as only between a man and a woman, is unconstitutional. That is the only such ruling on DOMA by a U.S. appeals court.
There really is no reasonable justification for DOMA. Its supporters simply seem to feel discomfort with just the idea of same sex marriage. But that group is dwindling and it will be interesting to see if the US Supreme Court also sees the writing on the wall and declares DOMA unconstitutional. However, it is possible that the court could uphold it on narrow grounds as being the right of Congress to pass such laws, rather than adjudicating more broadly on the constitutionality of same sex marriage.
If so, there will be pressure on Congress to repeal it and president Obama has already called for such action.
It is a significant sign of how sentiment has shifted on this issue that Republicans are studiously avoiding making an issue of same sex marriage in this election, even though they are losing and hot-button issues are the traditional means of trying to sway voters on emotional grounds. That is a clear sign that opponents feel they are on the losing side of history.