Death of DOMA

Next step: granting same sex couples in the US the constitutional right to marry

On Wednesday, the Supreme Court of the United States handed down a momentous decision on same-sex marriage. There were two issues before the court. First, do same-sex couples in the US have a constitutional right to marry? Second, is the federal Defence of Marriage Act (DOMA) constitutional? The court did not decide the first question because it held that it was not properly presented. But in a five-to-four decision, it held the DOMA unconstitutional.

After a long history of often virulent persecution of homosexuals, in the 1960s, Americans began to recognise that gays and lesbians deserved fair and equal treatment. This led to their gradual acceptance and a greater willingness among gays and lesbians to "come out" of the closet. As people discovered that some of their friends, their cousins and even their children were gay, they came increasingly to support an end to discrimination against homosexuals. By the early 1990s, people even began to talk seriously about allowing same-sex couples to marry. This horrified those who strongly opposed, usually on religious grounds, such an idea. This led the Congress to enact the DOMA in 1996.

Among other things, the DOMA defined marriage for purposes of federal benefits as "between a man and a woman". This was a critical piece of legislation, because as individual states began legalising same-sex marriage, the DOMA denied same-sex couples who were legally married under state law federal benefits such as tax deductions, social security and health coverage. The United States vs Windsor case involved a legally married lesbian couple in New York who challenged the constitutionality of the DOMA's denial of federal benefits to them. In an opinion by Justice Anthony Kennedy, the SC held this provision of the DOMA unconstitutional.

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