4 signs that DOMA is doomed

Dana Liebelson

With the president, key Republicans, and giant corporations showing support for same-sex marriage, the Defense of Marriage Act's days are numbered

With the Supreme Court deliberating on gay marriage for the very first time — through Proposition 8, an extremely high-profile case in California — it's easy to forget that the justices have another important task on their hands: Figuring out what to do with same-sex couples who are already wed.

It's been nearly two decades since Bill Clinton signed the Defense of Marriage Act (DOMA), which prevents a married same-sex couple from receiving the same federal benefits as Mike and Leslie next door. Back when Clinton signed the controversial law, there wasn't a single married gay couple in the United States. But today, nine states and the District of Columbia have legalized marriage equality, and at last count, more than 130,000 couples had tied the knot. As the oft-mocked video produced by the conservative National Organization for Marriage feared, "a [gay marriage] storm is coming." And these newly hitched Americans are tired of getting discriminated against when it comes to issues like health insurance, tax deductions, and Social Security benefits after a spouse's death. Are DOMA's days numbered?

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Brian Moulton, legal director at the Human Rights Campaign, says yes: "[These couples] are putting a real, human face on DOMA's discrimination," he tells The Week. "That is why numerous federal courts, including two appeals courts, have ruled that the law violates the Constitution's guarantee of equal protection. While there are no guarantees in litigation, I believe this very strong case will convince the Supreme Court to come down on the side of equality as well."

Jay Michaelson, a gay rights advocate who has a JD from Yale Law School, agrees: "Marriage has always been a matter of state law, and DOMA has been unconstitutional since the moment it was passed. Moreover, DOMA targets a specific minority group, and discriminates against it. Discrimination is un-American."

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Here, four more signs that DOMA's death bell is ringing:

1. Big name corporations say DOMA is hurting their business
When corporate giants like Google, Microsoft, Facebook, Starbucks, Citigroup, and Walt Disney join forces for a cause, you can bet that people will pay attention. These companies and hundreds more signed a brief submitted to the Supreme Court late last month, urging the court to give same-sex couples federal benefits equal to those afforded to heterosexual couples. Why do these companies care? Not only does the law conflict with an increasing number of non-discrimination policies (according to the brief, as of December 2012, 88 percent of Fortune 500 companies explicitly protected gay and lesbian employees from discrimination), but the companies are finding that implementing the law is a serious challenge.

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DOMA doesn't stop (non-federal) employers from offering health-care benefits to an employee's same-sex spouse, but it does force companies to adhere to discriminatory tax policies. According to the brief, "because of DOMA, the typical paycheck...for a married employee with a same-sex spouse looks different than that of her colleague married to a different-sex spouse." Michaelson points out that "most states [and companies] will not want the economic consequences of discrimination."

2. Republicans are getting behind gay marriage
House Speaker Rep. John Boehner (R-Ohio) may be willing to spend hundreds of thousands of tax dollars to defend DOMA, but that doesn't mean the rest of his party is cool with discriminating against gay Americans. The New York Times first reported last month that more than 75 GOPers — including two members of Congress, Dick Cheney's daughter, top advisers to former president George W. Bush, and a senior advisor to Mitt Romney — were urging the Supreme Court to permit gay marriage to continue in California. The GOP-backed brief specifically dealt with overturning Proposition 8 in California, not the Defense of Marriage Act. But if the Republican Party is on board with gay marriage (even if it's just leaving the issue up to the states), this discriminatory federal law won't last long. "Removing the obstacle of DOMA will motivate more states to move to marriage equality, particularly those that have created civil unions or domestic partnerships," says Moulton. 

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3. President Obama says the law is unconstitutional
Obviously, the role of the Supreme Court is to help check the executive branch — but when the president of the United States calls a law unconstitutional (especially one passed by his Democratic predecessor), it doesn't go unnoticed. President Obama has ordered his administration not to defend DOMA and has also submitted a brief to the court arguing that the law "violates the fundamental constitutional guarantee of equal protection" and "denies to tens of thousands of same-sex couples who are legally married under state law an array of important federal benefits."

4. Some legal scholars are pushing Clarence Thomas to go rogue
Supreme Court Justice Clarence Thomas, "the most conservative justice since the 1930s," historically votes in favor of state authority, and is something of a "legal outlier" with "radical" views, according to The New York Times. So radical, in fact, that he's not afraid to dissent from his fellow conservatives — like in Gonzales vs. Raich, in which he argued that Congress wasn't allowed to criminalize owners of home-grown weed (including in states where it was legal to grow for medicinal purposes) because it would give the federal government too much power. According to Damon W. Root at Reason, legal scholars are already trying to talk Thomas into using this same logic — and it could work: "Thomas has a tendency to break with the Supreme Court's conservative bloc when federalism principles are at stake in a case that is otherwise seen to advance a liberal political agenda," Root writes, "which is basically the Defense of Marriage Act controversy in a nutshell."

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