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A federal appeals court acted appropriately this week in finding unconstitutional a 1996 federal law that restricts the ability of same-sex couples in Connecticut and other states from obtaining the rights and privileges provided other legally married couples.
Unfortunately, such couples will not see an immediate benefit. The United States Court of Appeals for the First Circuit in Boston issued a stay of its decision, anticipating that the Supreme Court will take up the case. The Defense of Marriage Act (DOMA), the subject of the court's ruling, denies various federal benefits to individuals in lawfully recognized same-sex marriages or civil unions.
DOMA prohibits legally married same-sex couples from filing joint federal income tax returns. It stops a spouse in a same-sex union from receiving a Social Security death benefit. DOMA forces a surviving spouse in such a marriage to pay an estate tax on an inheritance that for other widowers is tax free. It prevents same-sex military families from receiving the same treatment and benefits as their straight counterparts. And it allows corporations to discriminate against employees in same-sex marriages when it comes to providing spousal benefits.
It is a bad law, and Congress should repeal it. But short of that, the Supreme Court should find it unconstitutional.
President Bill Clinton signed DOMA into law in 1996 when he was seeking re-election. The law sought to discourage states from giving legal status to same-sex couples. Signing it helped burnish Mr. Clinton's moderate credentials. The same political calculation led Mr. Clinton to approve the "don't ask, don't tell" policy that allowed gay individuals to serve in the military as long as they kept their mouths shut.
President Barack Obama was able to persuade Congress to abandon that policy and, as a result, homosexual members of the military can now serve without having to hide or lie about a major part of who they are.
The Obama administration likewise refused to defend the constitutionality of DOMA. The Republican majority in the House of Representatives took up the cause, appointing a group called the Bipartisan Legal Advisory Group to defend it.
The irony is thick. Republicans, who like to characterize themselves as the party of state rights, lined up in defense of a law that seeks to force states to bend to the federal government's will.
Until DOMA, the federal government had never challenged the authority of states to define marriage. States have different ages of consent, different restrictions on marriages within families, different requirements to get a marriage license. But however the states defined marriage, Congress recognized its legal status when it came to federal policies and benefits.
In writing the appellate court's decision, Judge Michael Boudin noted the unprecedented and unconstitutional attempt by Congress "to put a thumb on the scales and influence a state's decision as to how to shape its own marriage laws."
By the way, the Judge Boudin was appointed by a Republican - President George H.W. Bush.
There is reason for optimism that the Supreme Court will follow the appellate court's lead. Justice Anthony M. Kennedy, who will quite possibly cast the deciding vote, has written prior decisions advancing gay rights. The First Circuit ruling relied on the logic found in Justice Kennedy's earlier decisions.
Marriage between two males or two females is legal in the District of Columbia and six states, Massachusetts, Iowa, Vermont, New Hampshire, New York, as well as Connecticut. It is set to become legal in Washington next week and in Maryland in January, but in each state the implementation could be delayed by opponents placing the question on the November ballot.
Other states have legalized domestic partnerships and civil unions for such couples, including New Jersey, Illinois, Delaware, Rhode Island and Hawaii, largely providing the same rights as marriage, without the name.
Once again a court has used the Constitution's civil rights bulwark, the equal protection clause, to prevent unequal treatment toward one class of people - same-sex married couples. The Supreme Court should follow the lead of the First Circuit.