The Damage DOMA Delivers
This post is among a weekly series of examinations about the effect society’s attitudes has on Lesbian, Gay, Bi-sexual, Transgendered and sexual orientation Questioning citizens. Each week’s contribution seeks to expose motivations, machinations, malice and complicity among detractors of the LGBTQ community and supporters.
The ironically named Defense of The ironically named Defense of Marriage Act undermines the very institution it was written to support. Most Americans are against DOMA, what it stands for and the effects it has on American families. Conservatives use DOMA as a wedge to divide the nation in fear to capture the paranoid vote. The Right uses false assertions to justify the law’s existence and rail against those who would repeal it. The Defense of Marriage Act causes real harm to real American families without addressing, much less solving, the very problems its supporters claim are its targets.
There have been numerous challenges to the statute with variable results. Arthur Smelt and Christopher Hammer sued Orange County, California in federal court for having been refused a marriage license. The case was dismissed in district court denying them grounds to challenge DOMA Section 2 and the constitutionality of Section 3. The suit was dismissed again on appeal by the Ninth Circuit Court of Appeals and denied hearing on further appeal to the U.S. Supreme Court. Refiling in March, 2009, the case was dismissed in District Court for not having applied for and subsequently having been denied federal benefits and thereby lacking “an injury in fact.”
Employees of the Federal judiciary is prohibited from suing the government in Federal court, resolving disputes instead through a system of arbitration called employment dispute resolution tribunals. Tony Sears sued for spousal benefits with husband Brad Levenson in his capacity as a deputy federal public defender. In that case, Judge Stephen Reinhardt, of the 9th Circuit of the U.S. Court of Appeals, sitting as a dispute resolution official, declared DOMA unconstitutional.
Golinski v. Office of Personnel Management began similarly before an employment dispute resolution tribunal and morphed into a full blown challenge to DOMA in federal court. Denied spousal health benefits, once denied the plaintiff, were declared to her entitlement but were nevertheless denied by the Office of Personnel Management in an announcement refusing to comply. Elevated to Federal court, the suit was dismissed procedurally though the judge invited the plaintiffs to amend the suit and refile as a challenge to DOMA Section 3. In response, the Bipartisan Legal Advisory Group moved to dismiss citing, for the first time, the definition of marriage is tied to procreation, and a father and mother is effective in raising children. At this point, on July 1, 2011, the DOJ filed in support of Golinsky including a detailed case for heightened scrutiny by virtue of “a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities,” a standard which Section 3 of DOMA does not meet.`
In July, 2010, Judge Joseph L. Tauro ruled on two separate cases, Gill v. Office of Personnel Management and Massachusetts v. U.S. Dept of Health and Human Services. Granting summary judgement for the plaintiffs, he found DOMA’s Section 3 violates the Fifth Amendment’s Due Process Clause in the Gill case. Regarding the complaint lodged by the Massachusetts Attorney General against the HHS, the court ruled DOMA violates the interstate commerce implications of the Tenth Amendment and the Spending Clause of Article 8, Section 8 of the U.S. Constitution.
Last July, U.S. Central California District Bankruptcy Judge Thomas Donovan declared DOMA unconstitutional because it denies a legally married same-sex couple the right to file a joint chapter-13 petition for bankruptcy violating their Constitutionally guaranteed right to equal protection under the law. Judge Donovan’s 26 page ruling cited civil rights cases spanning 50 years. Particularly noteworthy in this case was the unusual consensus displayed among the twenty-five member court, nineteen of whom signed Judge Donovan’s decision in concurrence.
That’s nineteen judges, none of whom need have bothered, felt strongly enough about the issue to add the weight of their offices behind the decision. Since when does 80% of a court division step up, unsolicited, to be heard on a socially contentious issue?
There are other ground breaking challenges in federal districts lacking in precedent or standard of review to serve as procedural guidelines in sexual orientation discrimination suits. In New York, a surviving spouse is subject to federal taxation as if she were unmarried, but is supported by the New York attorney general with a brief filed in July, 2011. GLAD has filed on behalf of same sex couples in Connecticut, New Hampshire and Vermont on Due Process Clause grounds similar to the the Gill case presented above.
Last February, President Obama and Eric Holder announced the Department of Justice won’t be defending DOMA in court simply because they, as attorneys, legal scholars, Constitution experts and administration officers, agree with several court rulings that find DOMA to be unconstitutional. The President and the Attorney General of the United States will continue to enforce the law, as they are bound by their offices. But, they shall no longer seek to protect its survival under challenge in the various courts of law scattered around the country. The Speaker of the House has subsequently announced a Republican Majority led defence of DOMA to challenges. Mr. Boehner has received listing of a number of pending cases in an advisory offered him by the Attorney General’s office.
It’s obvious the forces against marriage equality are losing the battle. Public sentiment notwithstanding, it is the courts that ultimately decide the fate and applicability of any law. Yet, the courts are not immune to public sentiment. New polling conducted by Greenberg Quillan Rosner Research commissioned by the Human Rights Campaign, indicates that every demographic, including conservatives, most age groups, those grouped by gender, education, region or religious denomination all support equality over DOMA. A host of attendant issues are also supported by the public. Voters support social security survival benefits, equalizing survivor tax burdens, and that government would do better focusing on employment rather than defending DOMA in court.
In a court of law, one can only prevail if solid proof of one’s position is offered and accepted valid in view of the basic structure of the Constitution of the United States. With this understanding, the President and the DOJ has withdrawn the government defence of what is obviously a discriminatory act that damages Americans for no good reason or discernable benefit to the state or its citizens. In public, one can say whatever one wants in support of any posit ion imaginable, regardless of how preposterous or outrageous, however fanciful or false. Anti-equality forces have been using a bevy of false assertions and paranoid fabrications to demonize LGBT citizens and convert them into some kind of all threatening entity that’s somehow magically destructive of mom, apple pie, children and the American Dream. The volume and creativity behind the ongoing apology for anti-equality prejudice is impressive, pernicious, and would be amusing were it not so damaging to those who include the very children anti-equality bigots pretend to care about.
Members of the Republican Party in Congress spin their version mills nonstop. Take Rep. Dan Burton (R-IN) who interpreted the President’s declension to defend DOMA in court as “the President simply declared a law to be unconstitutional and one that he will not defend or enforce.” That’s a 50/50 statement. The President continues to enforce the law as is his official duty. He has directed the Department of Justice that serves at the pleasure of the President, to no longer waste public time and money on defending the glaringly unconstitutional law that has been declared unconstitutional repeatedly in Federal courts. Never mind more Americans than not are against the law, too. Burton, and those like him, ignore reality in favour of their magical world of invisible, threatening, black helicopter pie-in-the-sky paranoia. Burton and his cronies pass laws that chip away at women’s rights, and favor the profit margins of multi-national corporations over working families, and the stock dividends and bonuses for insurance executives over premium payers who are arbitrarily denied coverage on transparently flimsy excuses.
Real people are getting hurt, as DOMA harms loving, caring, committed same sex couples.
There are over 580 thousand same sex couples in the United States, about 50 thousand of which are legally married and 85 thousand in second-class registered partnerships or civil unions. Among these 135 thousand couples, about a quarter of a million children are being raised without the legal and social benefits extended to first-class married couples.
The most rabidly anti-equality zealots claim it is being LGBT alone that causes depression, substance abuse and social isolation. Research indicates that tradition and laws like DOMA give bigots permission to persecute LGBTs in ways that perpetuate traditional or generate new social stigma that harbors enough stress and attendant disease to cause severe injury to their mental and physical health.
“Stress associated with discrimination is one of the factors that contribute uniquely to disparities in health among racial and ethnic minorities. Research has documented a correlation between discrimination and hypertension in racial miorities. A ‘minority stress model’ has been proposed that hypothesizes that discrimination and stigma combine to create a hostile environment that results in health disparities.” [p22]
Some 26 thousand bi-national same sex couples are forced to separate, often for a ten year minimum, because they are denied participation in green card or accelerated naturalization offered to alien spouses of American citizens.
Social security surviving spouse benefits routinely offered surviving spouses of first-class married couples. Surviving spouses of same sex couples are disqualified from federal estate tax spousal exemptions which often leads to the surviving spouse to lose their home, savings, investments and other property to the State or Federal governments. Likewise, Medicare Long Term Care Spousal Impoverishment Protections are denied leaving surviving same sex spouses vulnerable to property and assest seizure, routinely protected from loss for first class heterosexual surviving spouses, to pay for Long Term Care.
Same sex couples pay taxes on health benefits provided by private employer policies at a higher rate, averaging about $1,000 per year, than assessed for those same services on first class married couples.
Veteran Partner Benefits, including educational assistance, pensions, job training and other benefits routinely offered to man-and-woman couples are denied to same sex married couples. There are almost 70 thousand same sex partnered veterans who are thus discriminated against by statute. Same sex spouses of Federal employees are disqualified by statute from an array of benefits available and routinely accepted by different- ex spouses.
These are but a handful of the over one thousand two-hundred Federal benefits extended to married couples the government recognizes, but cannot honor among same-sex couples, whether married, in domestic partnerships or any of the other less-than substitutes for marriage equality. Last July, UCLA School of Law submitted testimony on Senate bill S.598, “The Respect for Marriage Act: Assessing the Impact of DOMA on American Families,” in which are recounted the foregoing and additional benefits and analyses on the permutations of the law’s effects. The Government Accounting Office lists additions to the U.S. code pertaining to statutory provisions related to marriage between 1996 and 2003.
These are real people suffering real damage from real discrimination in the real world. These aren’t statistics or faceless people from some demographic you’ll never meet. These are everyday citizens living next door, or down the street, in every public and private profession, who are raising children at a traditionally and statutorily enforced disadvantage. This is pinpoint targeted bigotry whose sole purpose is to punish non- heterosexuals for merely existing.
The fact remains that no anti-marriage equality legislation shall ever reduce or eliminate the number of female couple- or male couple-headed households in America or anywhere else in the world. Denying surviving spouse benefits doesn’t ensure the security of underage children who lose one of their mommies to illness or one of their daddies in an accident or anti-gay violence. American same sex marriages, which have existed in America for close to a decade are already proven to have no more effect on heterosexual American marriages than do same sex marriages in foreign countries. The courts have ruled that marriage is a Constitution-guaranteed right. That means same sex couples have always had that right regardless of social taboos, tradition and statutes that have prevented the occurance of same sex marriages in fact. Some states have recognized marriage equality by statute; others by court order. More states have skirted the issue by imposing somewhat conciliatory, yet overarchingly obstinate, recalcitrant, mean spirited separate-but-equal sub standard substitutes. The states will be won over individually little by little. It’s inevitable and only a matter of time as the older, more set-in-their-ways generations die off. It appears, however, it shall take judicial proceedings to homogenize and emulsify the nation’s attitude toward LGBTQs and the country’s extension of due process, equal protection under the law and securing the blessings of liberty to ourselves and our posterity.
© 2011 Nathan Garcia. All International Rights Reserved.
Nolo.com instructions on how to protect yourself and your spouse in illness and one surviving the other.