a quick run-down on DOMA

So what happened in the US Supreme Court today?

SCOTUS (Supreme Court of the United States) handed down a judgment declaring the Defence of Marriage Act (DOMA) unconstitutional. In practical effect, this means that same-sex couples can now enjoy equality in marriage with heterogeneous couples.

What is DOMA?

DOMA is an act signed into law by Bill Clinton in 1996. It limited the definition of marriage in the US to one man and one woman. It also meant that the US would not recognise a same-sex marriage conducted elsewhere.

I have to stop you here – I’ve seen people saying not to call it ‘same-sex’ marriage.

They’re right – it should be referred to as ‘equal marriage’ as that is what it is. However, I’m going to need a way to refer to it as differentiated from the institution of marriage as it has been up to now. What’s really rather annoying is when people call it ‘gay’ marriage – that takes away the voices of bisexual or queer or trans* individuals who are also affected here.

To clarify – I am not saying that all individuals under the trans* umbrella are also queer, but that some are, and that some people identifying outside the gender binary would have had problems in wishing to marry someone of their registered-at-birth sex.

What did the SCOTUS declare?

SCOTUS decided, by the narrowest of majorities, that DOMA is unconstitutional in US law. The Court struck down the law 5-4, with Kennedy J leading for the majority. The case – United States v Windsor – involved a widow, who had been married to her partner in Canada, and who was, at the time of her wife’s death, living in New York State. New York recognised same-sex marriages performed elsewhere. If that recognition counted under federal law, Ms Windsor would not have to pay the massive estate tax on inheriting her wife’s property.

US law works on two levels – state and federal. In a nutshell, state law refers to the individual governance of each state by itself; federal law comes from Washington DC and applies everywhere. Kennedy J points out in his judgment that there are over a thousand federal laws referring to marriage or marital status, all of which Ms Windsor and others in her position could not benefit from. Traditionally, domestic status was a matter for individual states; DOMA overreached that entirely.

Kennedy J’s opinion is long enough, but worth reading. However, you can get its thrust from this lovely bit of legal writing:

DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities. By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. By this dynamic DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects… and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.

Why did it take so long to get here? I thought Obama was going to repeal this law straight away.

The Obama administration considered DOMA to be wrong from the time of his first campaign. In 2011, his Attorney General stated that the administration would continue to enforce DOMA until it was overturned by the Courts or repealed by Congress, but that as for themselves, they considered it unconstitutional and would not defend it if a case was taken to overturn.

The legal system of the US, like our own, believes in the separation of powers between executive (administration), legislative (the parliamentary Houses), and judicial (the courts). The executive did not want to act in contravention of that system. Whether you consider that for better or for worse is up to you.

We have a similar situation in Ireland, don’t we?

We do – same-sex couples in Ireland can get a civil partnership under the 2010 Civil Partnerships and Certain Rights and Obligations of Cohabitants Act (CPCROCA). They cannot obtain a marriage, and therefore lose out on some benefits, including joint guardianship of children. Also, different-sex couples cannot obtain a civil partnership. It’s an entirely two-tier system and quite unfair.

I’ve seen people have reservations about the impact of this SCOTUS ruling.

I don’t think most liberals have reservations about the beneficial impact of the repeal. There are a few different viewpoints, though. One strong contention is that marriage is not the defining victory it seems – that there is still a lot of discrimination faced by LGBTQ people that won’t be corrected by allowing marriage. A vocal minority contend that they don’t want equal marriage at all; that they have no interest in buying into society’s institutions.

Conservatives will have many qualms about today, but it’s my general opinion that they’re going to end up on the wrong side of history on this one anyway, so I don’t feel too sorry about that.

What do you think?

I’m a believer in the power of a good symbolic victory. I’m also a believer in allowing all strands of people the same level of access to societal institutions, so that you may partake or not partake of them at your will. I feel the frustration of progressives that we get nothing but baby steps toward full equality (the abortion debate in Ireland being a topical example). If there’s one thing that I’ve taken away from studying law, though, it’s that most progress comes as the combined effort of many little rocks tumbling, rather than one massive avalanche. DOMA has had several challenges before now, and its time had come. Slowly but surely – that’s how we effect change.

I’m also thrilled at the strong advisory precedent this sets for other jurisdictions like our own.

Is that really all you’ve learned about legal matters?

Not really. I also know that the law is almost always an ass – but I still like when it shows its good side.

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