Chipping Away at DOMA: Small Yet Significant Steps Ahead

The Defense of Marriage Act (DOMA) is starting to crumble under its own weight. The Obama Administration long ago refused to defend the legislation, and President Obama himself affirmatively came out in support of same-sex marriage. The Pentagon, for the first time ever, recognized Gay Pride with a ceremony last month. A military chaplain performed a marriage between two military men. The Federal courts, with the aid of stalwart plaintiffs who are demanding equal rights for all, are chipping away at DOMA.

Recently, the First Circuit Court of Appeals in Boston was the first federal appeals court to declare any part of DOMA to be unconstitutional. In particular, the court held that Section 3 of DOMA violates the Equal Protection Clause by denying married same-sex couples the same benefits given under federal law to heterosexual married couples. This month, the Obama Administration made a rare request to the United States Supreme Court to review both the First Circuit case and a case still pending before the Ninth Circuit Court of Appeals with respect to the constitutionality of Section 3 of DOMA.

These decisions address discrimination with respect to federal benefits, not the general validity of same-sex marriage. If the United States Supreme Court accepts review of one or both cases in its October conference, it may render a ruling as early as next year. The consensus has been that the Supreme Court is divided 4-4 generally on the issue of gay rights, with Justice Anthony Kennedy as the swing vote leaning in favor of gay rights given his authored opinions in recent landmark decisions on the subject (though, as just illustrated in the Affordable Care Act case, the breakdown may not be so predictable).

The decision of the Supreme Court would most likely be similarly narrowed to the realm of federal benefits, especially given the Court's preference for small as opposed to sweeping steps on social issues of such significance. Nonetheless, given the wide array of federal benefits at issue, its practical effect could be tremendous.

According to research conducted by the Human Rights Campaign, there are over 1,100 federal benefits that presently are offered to some married couples but not others. These benefits cover the spectrum from inheritance rights, taxation, retirement planning, family and medical leave, to access to healthcare. As just a few examples, same-sex couples are currently deprived of the right to file joint tax returns, the right to collect Social Security benefits as a surviving spouse or family member, the right to take unpaid leave to care for a sick or injured spouse, the right to sponsor a foreign-born spouse for immigration, the right to visit one another in the hospital, and protection from enormous tax burdens and loss of both homes and retirement savings in cases of severe medical emergencies or death of their spouse. Federal employees are also unable to receive equal family health and pension benefits.

It is likely that the Supreme Court will address the constitutionality of DOMA in the next year, albeit in just certain respects. Nonetheless, an ultimate ruling on Section 3 of DOMA could have substantial practical effect in extending a panoply of federal benefits to same-sex married couples. It may also more fundamentally signify that federal discrimination will end regardless of whether one believes in or rejects the concept of same-sex marriage. States will still have the right to determine marriage equality, but the recognition by the Federal Government of same sex marriages where solemnified will enhance the rights of the couples and expand the protections enormously.