The rise and fall of “skim milk marriage”


    I wrote here 10 months ago that the federal Defense of Marriage Act – which defines marriage as heterosexual, and denies federal benefits to legally married gay people – was headed for history’s dustbin. The Clinton-era bigotry law, ginned up by a Republican Congress and endorsed by typically timid Democrats, was, in my view, “destined to become as obsolete as the videocassette.”

    The death of DOMA indeed seems scheduled for June, given what transpired yesterday at the U.S. Supreme Court. Whacking the law would be a boon only to gay couples wedded in the nine legalization states, but it would constitute a major step down the road toward marriage equality.

    The contours of such a ruling seemed clear yesterday. The four Democratic appointees recognize DOMA’s fundamental breach of the Constitution. The ’96 law says that even if states legalize gay marriage, the lucky couples can’t reap any of the 1,100 federal benefits that come with marriage – Social Security survival benefits, guaranteed family and medical leaves, the right to file joint tax returns, you name it. The woman in the DOMA case, Edie Windsor, was legally married to Thea Spyer – at least according to the state of New York – but after Spyer died in 2009, Windsor had to pay $363,053 in federal estate taxes. That’s because, under DOMA, the feds don’t recognize her as a widow. She would’ve paid zip if she’d married a male.

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    The Democratic appointees recognize that Windsor was denied equal protection of the laws, as guaranteed by the 14th constitutional amendment. In the words of Ruth Bader Ginsburg yesterday, the 1,100 federal benefits affect “every area of life,” and DOMA essentially decrees “two kinds of marriage: the full marriage, and then this sort of skim milk marriage.”

    That’s four votes to doom DOMA. The fifth vote is Republican appointee Anthony Kennedy – probably for an entirely different reason. Kennedy is big on the principle of “state’s rights,” and DOMA is a classic example of federal intrusion into the traditional right of states to regulate marriage as they see fit. Indeed, he suggested yesterday that DOMA is “in conflict with what has always been thought to be the essence of state police power, which is to regulate marriage, divorce, custody.”

    Hypocrisy alert

    One might think that such a bedrock Republican precept would also propel the other Republican appointees to nuke the law, but Justices John Roberts and Antonin Scalia, in particular, seemed determined to avoid philosophical consistency – just as the congressional Republicans did back in 1996. It’s fascinating how hypocrisy works. They hate “big government” and revere “state’s rights,” except when they don’t. They don’t want “big government” intruding in our lives, except in the bedroom. The combined House and Senate Republican votes for DOMA was 277-1. (House and Senate Democrats, terrified of being tarred as cultural liberals, voted Yes, 150-79.)

    So, Kennedy plus the Democratic quartet equals the death of DOMA. The bigotry law has long been on life support anyway. It was struck down by a federal court in 2010, in a ruling written by a Republican appointee. It was struck down again, by a federal appeals court last June, in a ruling written by a Republican appointee (“DOMA intrudes extensively into the realm that has from the start of the nation been primarily confined to state regulation”), and seconded by another Republican appointee.

    Perhaps that helps to explain why the arguments in defense of DOMA were so weak yesterday. Paul Clement, the defense lawyer, insisted that the Republican Congress crafted the law because it wanted to ensure that gay couples would be treated equally nationwide (translation: that they all would be denied federal benefits, “in New York, the same as in Oklahoma,” regardless of whether they were legally married). Clement said that the real issue, what Congress sought most of all, was “uniformity.”

    Actually, no. DOMA was not about “uniformity.” It was about big government playing the role of pastor. Justice Elena Kagan made that quite clear, during the day’s most delicious exchange.

    Addressing Clement, she brandished the official House paperwork that described what DOMA was really all about. She told him, “I’m going to quote from the House report here: ‘Congress decided to reflect and honor collective moral judgment and to express moral disapproval of homosexuality.'”

    Clement’s response: “Does the House report say that? Of course the House report says that.”

    Game over.

    And by the way, the Obama administration didn’t even bother to send a government lawyer to defend DOMA. Paul Clement showed up to champion the law only because he has been bankrolled with $3 million of the taxpayers’ money.

    His client, his wise disperser of public funds: the House Republicans. That says it all.


    To really appreciate how the zeitgeist on gay issues has shifted, look no further than Rick Santorum’s website (it’s officially called Patriot Voices, but it should probably be called Please Don’t Forget About Me). Here we are, in our most historic week of gay marriage jurisprudence, yet this famously outspoken defender of family values has not written so much as a syllable about it. You learn that “Santorum Praises Selection of New Pope,” but zip about the issue on which he has so frequently engaged. Santorum staying mum on gay marriage? That too says it all.


    Meanwhile, in other news, mass murderer Adam Lanza fired 154 rounds from his Bushmaster in less than five minutes. Or, as the gun-fetishists call it, Freedom.


    Follow me on Twitter, @dickpolman1



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