First Circuit Goes Down on DOMA

Section 3 of the Defense of Marriage Act (DOMA), passed by a Republican Congress and signed by President Bill Clinton, has been declared unconstitutional by the U.S. Court of Appeals for the First Circuit sitting in Boston.

I neither support nor oppose gay marriage, believing that civil unions would adequately address the demands of equality. It's my view that same-sex unions are very similar to opposite-sex marriage but also different in important ways that make some legal distinctions desirable even with a framework of extending full civil rights.

Section 3 of DOMA provides:

"In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."

This was a little bit lazy, in my judgment and in the court's. There are, I would imagine, quite a number of places in the federal regulations and rules of far flung federal bureaucracies where the word spouse is used in and offhand and trivial ways that would give no great concern if it were extended to gay couples.

The court seemed to find one of these in a obscure provision regarding federal funding for veteran's cemeteries. In other words, should such a veteran's cemetery be excluded from receiving federal funding merely because some soldiers are buried there with their gay partners rather than the cemetery being limited to soldiers and their spouses as narrowly construed by DOMA. In a word, that's silly.

There are, on the other hand, instances where it strikes me as fair for Congress to decide who gets the benefits of the "married filing jointly" tax status, particularly if some states allow gay marriage and others don't. Which is more important withing our federal constitution, taxing gay couples the same as straight couples in Massachusetts or taxing gay couples in Massachusetts the same as gay couples in North Carolina?

The difficult cases are the ones that come down to benefits. Congressman Gerry Studds represented Massachusetts in the U.S. House of Representatives from 1973 to 1997. Midway through that tenure, in 1983, he was censured for having an affair with a 17-year-old page. Gerry Studds and Dean Hara were married in May 2004 (they reportedly had been couple since 1991). Studds passed away at age 69 in October 2006.

The legal question under DOMA is whether Hara should get the pension and health benefits that Congress extends to spouses. And here the case has an interesting wrinkle. Former Congressman Studds seems to have failed to check the "self and family" box when applying for benefits.

Dean Hara may be just as well qualified in the minds of some egalitarians to receive federal pension and health benefits as Nancy Moore, the second wife of U.S. Senator Strom Thurmond, who married Strom when he was 66 years old (on the way to 100) and she was 22. They separated in 1991 but never divorced. Nancy did have 4 children with Strom, so perhaps her case is different than Dean on that account.

Then there is the case of Carrie Butler, a Thurmond family maid who had his first child when she was 16 and he was 22. Should the federal taxpayer have paid her a pension too? She died in 1948, making that question moot. Their daughter Essie Mae is still living.

It does not really matter the the general public, outside of a person's family, who was the right to visit them in the hospital or inherit their partner leaves to them when they die.

It does, however, matter who must be paid a public pension, who gets their health care bills paid, who was to pay what level of taxes, and other questions of that sort. Most of the laws regarding spousal benefits are premised on the traditional notion that one spouse, traditionally the male breadwinner, is responsible for the financial support of the other spouse, both in life and to some extent in death.

In the short term, it's convenient for the First Circuit to say marriage is marriage, but that's bound to lead to results just as silly as the veteran's cemetery. Over the longer term, we're going to have to better define what marriage means, both for same-sex and opposite-sex couples. That's not a place everyone is ready to go, and not just for reasons of bigotry.

Here's where we are today. Retiring U.S. Congressman Barney Frank (age 72) will marry his partner Jim Ready (age 42) in June. That, by the way, just fails the half your age plus rule (72 / 2 = 36, 36 + 7 = 43). Former U.S. Senator John Edwards was acquitted today on one charge with a mistrial declared on others related the secret payoffs to Rielle Hunter, with whom he had an affair and a child. On the way out the door of the courthouse, a reporter asked Edwards if we would now be marrying Hunter.

I don't see how it is fair that I, as a single person and taxpayer, should have to pay a pension to either Jim Ready or Rielle Hunter. Explain the equality of that.