A few days ago, someone said to me: “Finally, I live in a state where same-sex marriage is legal. So, I’m just not that concerned about the issue any longer.” For a moment, I was stumped for the proper response. “So long as one couple is discriminated against, then all couples are discriminated against,” appeared to be the obvious rejoinder. Though true, it misses the mark. The speaker had always cared deeply about the issue, and deserved better than a facile response. A little more thought made me realize that the statement stemmed from a misunderstanding of our Federal government’s role in the marriage equality debate.
In 1996, Congress enacted the Defense of Marriage Act (DOMA). That act permits the Federal government to not recognize legal same-sex marriages performed in any state of our union. The Feds non-recognition of same-sex marriage results in same-sex married couples being denied over 1,100 Federal rights and benefits which flow to opposite-sex married couples. Those rights and benefits include, for example, the right oppostite-sex couples have to: transfer property between spouses tax-free; receive Social Security spousal benefits; and not suffer the sale of their home upon the death of one of the spouses. In short, a same-sex couple legally married in, for example, Washington does not enjoy the same Federal rights and benefits as enjoyed by an opposite-sex couple married in Washington. That’s the rub.
The legitimacy of DOMA – whether same-sex couples will continue to be discriminated against for Federal purposes – is now before the Supreme Court. Hopefully, the Court will end this discrimination, since there appears to be no legally sufficient reason to continue treating one lawful marriage differently from another lawful marriage. Congress may wish it to be so, but its prejudices do not rise to a legally sufficient reason for imposing those prejudices on the states.