Geof Stone Deconstructs DOMA

Deconstructing DOMA
Geoffrey R. Stone
The Huffington Post
July 20, 2010

In his recent decision in Gill v. Office of Personnel Management, federal judge Joseph L. Tauro held unconstitutional section 3 of the Defense of Marriage Act (DOMA). In reaching this result, Judge Tauro, who was appointed by Richard Nixon, addressed a subtle but important issue of constitutional law.

The federal government provides many benefits to married couples. For example, the spouse of a federal employee is entitled to medical coverage, the spouse of an individual covered by Social Security is eligible for retirement and survivor benefits, and married couples who file joint tax returns usually pay considerably lower federal income taxes than individuals who file separately.

Before 1996, all federal programs providing marriage benefits left the definition of "marriage" entirely to the States. If a couple was legally married under State law, then they were "married" for purposes of federal law. This was so even though States often have quite different rules about marriage. Some states, for example, recognize common law marriage, most do not. Some States allow people to marry without parental consent at age of 15, others require them to be at least 18. Some States permit individuals to terminate a marriage without any finding of fault, others do not. In all these circumstances, federal law defers to the State's definition of marriage. Indeed, from the very founding of our nation, the definition of marriage has been understood to be a State rather than a federal responsibility.

In 1996, however, Congress suddenly jettisoned this deeply-rooted tradition and attempted to interpose a new federal definition of marriage.The precipitating event was a debate in Hawaii over the legal recognition of same-sex marriage. Vilifying gays as "immoral" and "depraved," and condemning same-sex marriage as "perverse" and as "an attack on God's principles," members of Congress pushed through section 3 of DOMA, which for the first time in our nation's history adopted a federal definition of marriage, confining "marriage" for federal purposes to only those legally-recognized marriages that are "between one man and one woman."

Geoffrey R. Stone