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Editorial: Marriage Equality

When Congress passed the Defense of Marriage Act with bipartisan support in 1996 and it was signed into law by President Clinton, its effect was entirely pre-emptive. At that point, no state yet sanctioned same-sex marriage, although some were beginning to get their minds around the idea. By the time the law was declared unconstitutional by the U.S. Supreme Court yesterday, Vermont, New Hampshire and 10 other states and the District of Columbia allowed gay Americans to wed. It is in many ways astonishing how far and how fast the equality-in-marriage movement has come in just 17 years.

This rapid evolution of views is echoed in Justice Anthony M. Kennedy’s majority decision, which held that DOMA’s provision denying federal benefits to lawfully wed gay couples is a violation of the Fifth Amendment’s Due Process Clause. “It seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and a woman in lawful marriage,” Kennedy wrote. “For marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization. That belief, for many who long have held it, became even more urgent, more cherished when challenged. For others, however, came the beginnings of a new perspective, a new insight” — an insight that eventually became embodied in state laws that permitted gay couples to wed. We suspect that many individuals can identify with just such a change in their own ideas over this period.

Anyway, even at the time that the court decided to hear the case (United States v. Windsor) that was decided yesterday, it had become clear to many that DOMA would be unlikely to survive judicial scrutiny. The law’s express purpose was to ensure that if states decided to recognize gay marriage, those unions would be “treated as second-class marriages for purposes of federal law,” as Kennedy put it. That is, the whole point of the exercise was to enshrine in statute unequal treatment under the law.

The practical effect of the ruling should not be underestimated. DOMA controlled more than 1,000 statutes and many federal regulations pertaining to Social Security, housing, taxes, criminal sanctions, copyright and veterans’ benefits, among others. The plaintiff in the suit the court reviewed, whose marriage in Canada was recognized by the state of New York, was forced to pay $363,053 in estate taxes when her spouse died, because DOMA disqualified her from the federal estate tax’s marital exemption.

Ultimately though, the symbolic effect of DOMA’s demise may be more significant. The court has affirmed that certain kinds of marriages sanctioned by the states may not be singled out for discriminatory treatment by the federal government that creates two classes of married couples within the same state. This is a long step in the right direction — a direction that becomes ever clearer as time goes on.