Marriage Equality – The Case That Challenges the “Defense of Marriage Act” (“DOMA”)

Tuesday, January 15, 2013

On March 27, 2013, the United States Supreme Court will hear the case of Edie Windsor, who sued the government for Estate taxes she paid after the death of her same sex spouse, Thea Spyer, in 2009. The couple was legally married in Canada in 2007 after a 42 year engagement. Ms. Spyer died of multiple sclerosis, and Windsor, now age 83, was forced to pay more than $363,000 in federal estate tax because their legal marriage was not recognized under federal law because of DOMA. It is not disputed that had Spyer been married to a man, no estate tax would have been owed. The implications of DOMA extend to all federal inter-spousal benefits, such as filing joint federal tax returns, or as here, estate tax exclusions for married couples.

Did you know that there are 1,138 benefits, rights and protections provided on the basis of marital status in Federal law? See Defense of Marriage Act: An Update to Prior Report, General Accounting Office, 2004. Also according to this report, as of 1997 there were 179 tax provisions that took marital status into account. Considering the data shows that at least 1 million children are being raised by same-sex couples in the United States, the implications of the inequities caused by DOMA have far-reaching effects upon those children.

Making the list of these gross inequities arising from DOMA between heterosexual and same sex marriage under federal law are: Social Security benefits; tax on Employer-Provided Health Benefits to Domestic Partners, tax gains from the Sale of the Taxpayer’s Principal Residence, Estate Tax laws (i.e. the Windsor case), taxation of Retirement Savings, the Family and Medical Leave Act rights, immigration laws, employee benefits for federal workers, the Earned Income Tax Credit, Head of Household status, and the Child Tax Credit. These inequalities also extend to divorcing same sex couples relating to federal tax law (i.e. Alimony, division of retirement accounts).

In the Spring of 2011, the GOP House Republicans took over the legal defense of DOMA when Obama’s Attorney General Eric Holder announced the administration would no longer defend it on the grounds that they found it unconstitutional. House Speaker John Boehner (R-Ohio) and other GOP leaders hired attorneys at the law firm Bancroft LLC to represent the House in court cases involving the federal ban on gay marriage — all with up to 3 million taxpayer dollars!

Thus the implications of the outcome of the Windsor case are enormous. If DOMA is struck down, “Windsor” will go down as a great civil rights benchmark. If it is upheld, it will become another Dred Scott-like decision; an embarrassment to be endured until the fight for marriage equality cannot be contained.

If DOMA is upheld, progress may stumble, but history tells us that progress will not be stopped.