New York Civil Liberties Union On Edie Windsor’s Victory — And Ours

Guest author Mariko Hirose is a staff attorney at the New York Civil Liberties Union.

Today, the Supreme Court in United States v. Windsor struck down section 3 of the Defense of Marriage Act (DOMA), a sweeping and extraordinary 1996 law that excluded married same-sex couples from all of the benefits, privileges, and obligations of marriage under federal law. The Court held in a historic opinion that such discrimination against gay men and lesbians—“writ[ing] inequality into the entire United States Code”— is inconsistent with the principles of equal protection under the United States Constitution.

The Court’s opinion centered on DOMA’s mandate that the federal government treat marriages of gay and lesbian couples—marriages recognized by the state where they were married—as though they were second-class marriages, or, as Justice Ginsburg called it during the oral argument, as “skim-milk” marriages. Because of DOMA, married gay and lesbian couples living in states recognizing their marriages could file state tax returns jointly, but not federal tax returns; they could put each other on their health insurance if they worked for the state government but not if they worked for the federal government; they had the same rights as opposite-sex couples to a public cemetery plot, but not to veterans’ cemeteries.

The Court discussed some of these concrete inequities, but perhaps more strikingly, the Court recognized the dignitary harm of DOMA—that placing same-sex couples in the “unstable position of being in a second-tier marriage . . . demeans the couple, whose moral and sexual choices the Constitution protects . . . and whose relationship the State has sought to dignify.”  The Court held that “no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”

This language of dignity and pride in itself reflects progress from the days when DOMA was enacted.  In 1996, when DOMA was enacted, the law of the land was Bowers v. Hardwick, a Supreme Court case from 1986 that upheld the constitutionality of state laws criminalizing consensual sodomy.  Not a single state in the United States permitted gay and lesbian couples the freedom to marry then, although the prospect that one state might do so was enough to frighten Congress into enacting DOMA in order to enshrine, according to the House Report, a “moral disapproval of homosexuality.”

It was ten years ago today in 2003, that the Supreme Court reversed Bowers in Lawrence v. Texas, recognizing that “the deficiencies in Bowers became even more apparent in the years following its announcement.”  It concluded that “[Bowers’] continuance as precedent demeans the lives of homosexual persons.”

Then, the same year, the Massachusetts Supreme Judicial Court held that the state could not deny same-sex couples the protections, benefits, and obligations of civil marriage under state law.  Same-sex couples began to marry in Massachusetts the next year, bringing into practical effect the inequities that had been created by DOMA.

Today, twelve states plus the District of Columbia (plus California as a result of the Perry decision) allow same-sex couples the freedom to marry, having decided, in the Court’s words, “that same-sex couples should have the right to marry and so live with pride in themselves and their union and in a status of equality with all other married persons.”  And although the Windsor opinion was explicit that its opinion was limited to marriages permitted by the states, the momentum of history seems to be clearly pushing in favor of fair marriage laws.

There is still much work to be done to bring the freedom to marry to the entire country— not to mention to ensure equality and fairness for all LGBT people outside of the issue of marriage— but today we have many reasons to celebrate:  for the progress that we’ve made as society, for the defeat of the last federal law explicitly mandating discrimination against lesbians and gay men, for the direct and immediate impact that this decision will have on the many married same-sex couples living in states with fair marriage laws, and for the full government recognition of marriage that Ms. Windsor’s loving relationship with her spouse, which spanned forty four years, will finally receive.

Image: Rally at the Supreme Court, via Flickr

Mariko Hirose is a staff attorney at the New York Civil Liberties Union, where she focuses on statewide civil rights and civil liberties impact litigation and advocacy, especially in the LGBT issue area.  Hirose was one of the attorneys representing Ms. Windsor in Windsor v. United States.