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Editorial: DOMA decision chips away at last bastion of inequality

By a 5-4 vote this week, the U.S. Supreme Court blasted a giant hole in the ramparts protecting the right to discriminate on the basis of sexual orientation. There will be no going back from its ruling that the 1996 Defense of Marriage Act’s prohibition against recognizing same-sex marriage is unconstitutional.

The court’s decision was issued along with a related opinion that, on technical grounds, let stand a lower court judge’s finding that California’s ban on gay marriage is unconstitutional. This means federal recognition of the marriages of same-sex couples in the 13 states, as well as the District of Columbia, that have legalized gay marriage.

One of those states, of course, is New Hampshire, which recognized civil unions in 2007 and same-sex marriage two years later.

For same-sex couples in those states, the ruling is a big deal. More than 1,000 federal laws, including those governing Social Security and military benefits, defining tax brackets and determining estate taxes, are affected by marriage status.

The case before the court was brought by Edie Windsor, 83, who was married to her partner of more than 40 years, Thea Spyer. When Spyer died in 2009, Windsor was hit with a $363,000 federal estate tax bill that she would not have owed if, as she said, she were “married to Theo not Thea.”

Windsor’s unequal treatment under the marriage act, said Justice Anthony Kennedy, the swing vote in the case and author of the court’s opinion, “imposed inequality” in violation of the Fifth Amendment’s requirement that everyone deserves the due process of law.

“The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the state, by its marriage laws, sought to protect in personhood and dignity,” Kennedy wrote.

As Yale historian George Chauncey pointed out in an essay in yesterday’s New York Times, discrimination has long been wed to marriage. Slaves could not legally marry before the Civil War and Nazi Germany forbid Jews from marrying non-Jews. Until 1967, the year Aretha Franklin recorded “Respect,” the state of Virginia banned interracial marriage. But the push for equality, legally and societally, cannot be resisted. Slowly the barriers fell. Interracial and inter-faith marriages are commonplace, the sight of openly gay couples is no longer a shock.

Presumably Windsor will now get her money back – that, and the satisfaction that she and her late partner have played a role in pushing their nation toward greater equality for all.

Much remains to be done, because the law will continue to discriminate against same-sex couples in the majority of states that have yet to legalize gay marriage. The push to do so will gain momentum as a result of the rulings, and more ramparts will fall.

The rulings, however, raise a host of questions. What will the IRS do when a legally married same-sex couple moves to a state that has not sanctioned gay marriage? Ditto for military and Social Security benefits. Will Congress and the courts tolerate federal discrimination based on marital status and geography?

As Justice Antonin Scalia noted in a characteristically vituperative dissent, the answer, at least for the courts, will be “no.” It won’t take long, a matter of months not years, we suspect, before a same-sex couple denied a federal benefit because they’ve relocated sues and the issue comes back to the high court.

We don’t know what will happen then, but we know what should.

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