In yet another defeat for opponents of same-sex marriage, the U.S. Second Court of Appeals ruled last Thursday against the 1996 Defense of Marriage Act (DOMA), virtually ensuring that the five court cases challenging the law’s constitutionality will go forward to the Supreme Court.

DOMA, signed into law by Democratic President Bill Clinton, defines marriage as one man, on woman and stipulates that for “all federal purposes,” no same-sex union may be recognized.

There are over 1,100 benefits which depend on marital status. From visitation rights to surviving spouse benefits to estate taxes, loving and committed same-sex couples are not currently eligible for the same rights and benefits as opposite-sex couples thanks to DOMA.

Even if a couple is married in one of the seven states – Washington, New York, Iowa, Vermont, New Hampshire, Massachusetts or Connecticut – that allows same-sex couples to marry, DOMA prevents those spouses from receiving federal benefits, and allows states where same-sex marriage remains illegal to refuse to recognize marriages performed in other states.

The operative clause in the law is Section 3, which reads:

“In… any Act of Congress or of any ruling, regulation, or interpretation… the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife”

Section 2 of DOMA declares that no state is compelled to

“give effect to any public act, record, or judicial proceeding of any other State… respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State… or a right or claim arising from such relationship”

While several courts – including the First Circuit Court of Appeals, located in Boston – have ruled that DOMA violates the U.S. Constitution, the First Circuit Court ruled in Windsor v. U.S. last Thursday that gay men and women are “entitled constitutionally to greater protection against discrimination” than they previously had been.

When discriminatory laws are evaluate for constitutionality, there is a hierarchy of the levels of scrutiny the law may undergo. Under “rational basis” review, most laws will be upheld. Under “intermediate scrutiny,” a slightly more rigorous level of review, if the government has a compelling interest in maintaining the policy and can show that such a law is “narrowly tailored” to achieve a specific goal the law is likely to be upheld. Under “strict scrutiny,” most laws will not be upheld.

Strict scrutiny is general reserved for cases of racial discrimination, while gender discrimination cases typically receive intermediate scrutiny.

For discrimination based on sexual orientation, courts have been using rational basis review. Under the new ruling issued last week, discrimination against gay men and women would be subject to intermediate scrutiny review.

The 3-judge panel ruled 2-1 in the case of New York City resident Edith Windsor. Windsor had inherited her deceased wife’s property and the Internal Revenue Service hit her with a tax bill of over $300,000 because DOMA prevented Windsor from being recognized as a “surviving spouse.” Without such designation, she did not qualify for a reduced tax burden as a married, opposite-sex couple would have.

This is a violation of the Equal Protection clause and warrants the repeal of DOMA. While there was a 2009 attempt to repeal DOMA, it was unsuccessful. Thus the opponents of the law took to the courts.

This ruling is highly encouraging – in addition to heightening the level of review discriminatory laws receive, the chief judge who issued the ruling, Dennis Jacobs, was appointed to the court by President George W. Bush, who was a frequent defender of DOMA.

Let’s be clear, though. While DOMA is supposedly “defending marriage,” it is a flagrant misnomer. A better name would have been “Restriction of Marriage Act,” or as the late Sen. Ted Kennedy (D-MA) quipped during initial hearings on the law, the “Endangered Republican Candidates Act.”

If the citizens of one state decide that same-sex couples should be able to obtain marriage licenses, it should be incumbent upon the other states to recognize that such a union exists. This is not even to say that they should be compelled to issue marriage licenses to same-sex couples: merely that they must recognize previously existing marriages.

If a man and woman are married in Massachusetts, they remain married in Texas. If a man and man or a woman and woman are married in Washington, they should remain married in Mississippi.

Codifying discrimination and bigotry into U.S. law doesn’t defend marriage: it degrades it.

Written by Savannah Thomas

Header image courtesy of NY Daily News