DOMA works its way through the courts

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.


  1. TGAP Dad says

    Since it only takes one senator, by means of an anonymous hold, to block any action by the senate, I see repeal as about as likely as snow in the Sahara. Even without an anonymous hold, it takes 60 senators to break a filibuster, and a filibuster would be guaranteed for a bill repealing DOMA.

    I think our best hope for ending the institutionalized discrimination against gays lies in the courts. Judging by the Lawrence decision, we could be looking at a 6-3 decision for repeal if SCOTUS grants cert.

  2. apovtak says

    I think there is a very good possibility the Court might strike down DOMA if and when it comes before it. I think there’s little question that the four “liberals” will be in favor of striking down the law. The key vote is Anthony Kennedy, who has consistently voted in favor of striking down laws the discriminate against homosexuals, even using the “rational review” basis and stating (i.e. in Romer v. Evans and Lawrence v. Texas) that there is no rational basis for applying laws disparately towards homosexuals.

    Dr. Singham, I’ve only come across your blog (and the FtB community) recently, and I really enjoy your posts. For what it’s worth, I’m also a CWRU alum (though I was a poli sci major)!

  3. Jared says

    Indeed, but that is Ed Brayton’s opinion, rather than Mano Singham’s. One of those people is a professor. The other is a former stand-up comedian.

    And Brayton’s main complaint seems to be “he compared a huge range of different family situations — children of divorce and adoption, children of single parents and many more — with children from stable households with two parents. It should hardly be a shock that he reaches the conclusion he does, it is guaranteed by the nature of the sample groups.”

    That is a legitimate complaint. The categories were poorly worded. As I understand it, it would have been better to label the categories of LM/GF as “children raised in families where one parent was homosexual or bisexual/had homosexual tendencies, in any family-type unit arrangement” rather than implying the categories were “children raised in a stable homosexual family unit arrangement”. However – assuming that the data wasn’t outright falsified/selectively chosen – there are still some surprising conclusions that it seems to draw.

    Children with a homosexual/bisexual female parent, regardless of the actual family-type, are 26% employed full-time compared to 43% of children raised by single parents? 28% unemployed to 13%? 69% to 48% received welfare growing up? 61% to 83% identify as solely heterosexual? 40% to 19% had an affair? 31% to 16% have been raped? These are some serious number differences which simply grouping a “huge range of different family situations” doesn’t, to me, seem sufficient to wholly justify.

  4. Mano Singham says

    The fact that I am a professor should not count for anything here because my field is physics not social science. Also, I know many people who do not have a college degree or even a high school diploma who are more learned and thoughtful than others with advanced degrees. When people step out of the narrow area of their expertise, their opinions should not be given greater weight than anyone else.

  5. Mano Singham says

    I took a quick look at the paper you linked to. Thanks.

    I am not really competent to get into the weeds of the study’s methodology and results but the fact that there are differences in some outcomes that are worse for the children of same sex couples, if it holds up, does not necessarily contradict my assertion that there is no justification for DOMA.

    In any given time, those families that are outside the norm face social stigma that the rest don’t. This is true not just for same sex couples but also to mixed-race couples or couples where one or more person has serious disabilities. Those families face enormous pressures. Should we be surprised if they find it harder to weather the storms of life than other families?

    We have to remember that it was barely a decade or two ago that the idea of same sex couples having children was unthinkable and viewed with outright horror. In many areas of the country, it still is. The children of such couples have to cope with this along with all the other things. This fact is not an argument for not allowing same sex families. Instead it is an argument that we should be as accepting of them as we would of any other couple if for no other reason than to spare the children.

Leave a Reply

Your email address will not be published. Required fields are marked *