The Defense of Marriage Act in the United States was a cruel exercise of federal power, and its demise, though an incremental victory in the larger battle for gay marriage, is of historic importance.
At its heart was a lesbian couple, Edie Windsor and the late Thea Spyer of New York, who after 40 years together came to Canada in 2007 when Dr. Spyer was dying from multiple sclerosis, and got married before Judge Harvey Brownstone of Toronto. In no conceivable way did their marriage, recognized by New York State, put the institution of marriage at risk, the U.S. Supreme Court said on Wednesday in striking the law down by a vote of 5-4.
DOMA denied federal benefits (and obligations) in more than 1,000 statutes to gay married couples, in states that recognize gay marriage. When Dr. Spyer died, Ms. Windsor had to pay $363,053 in federal estate tax. Was the institution of marriage any stronger because a gay married couple was treated this way? Of course not. Herein lies the ruling’s importance: Heterosexual-only marriage laws are no longer seen by the highest court in the U.S. as a defence of marriage, but rather as an attempt to injure long-stigmatized people like Edie Windsor and Thea Spyer.
The law created two classes of married couples: the approved kind, and the back-of-the-bus kind. The court was clear about why that was so destructive. It stigmatized gay married people and expressed “moral disapproval of homosexuality.” It also humiliated the many thousands of children raised in these marriages, the court said, by making it more difficult “to understand the integrity and closeness of their own family and its concord with other families.” And in denying a vast array of benefits (from prohibiting gay wedded couples from being buried together in veterans cemeteries to taxing health benefits provided by employers), the law undermined the stability and predictability in “basic personal relations.”
Even after the U.S. justice department declared in 2011 that DOMA was unconstitutional, it continued to enforce it, arguing that the judiciary should be the arbiter of the constitutional claims at issue. The law was acknowledged to be wrong, and yet continued to live and do harm.
Only 10 years ago, gay sex was still illegal in several states. Today, after a separate ruling on Wednesday that had the effect of legalizing gay marriage in California, roughly 30 per cent of the U.S. population live in states with gay marriage. Politically, morally and now legally, the arguments against gay marriage are losing force. It is good to see that Canada, which got there first, helped nudge that process along by being there for Dr. Spyer and Ms. Windsor.