Court hears arguments in DOMA case

Joe Davidson
Columnist March 27, 2013

Alan Hoyle looked like a lonely man.

Clad in a burlap sack, a ram’s horn slung over his shoulder and a Bible in his left hand, Hoyle was one of the few supporters of the Defense of Marriage Act outside the Supreme Court on Wednesday.

Joe Davidson writes the Federal Diary, a column about the federal workplace that celebrated its 80th birthday in November 2012. View Archive

Though almost lost among the throng of DOMA opponents, his scripture-quoting sign, about a man being “joined to his wife,” drew the curious and some good-natured hecklers who urged him to blow his horn.

He obliged.

Hoyle said he is from North Carolina, “near Charlotte.” Asked whom he represented, Hoyle pointed skyward and said, “Represent God,” who did not reply to a request for confirmation.

Hoyle was a novelty distraction within a much larger crowd that urged the court to strike down DOMA, which excludes same-sex married couples from the federal definition of marriage.

It’s more than a theological debate.

The law prevents same-sex spouses from sharing the many federal benefits and responsibilities, found within 1,100 federal laws, including those applicable to federal employees. That means Karen Golinski, a lawyer with the federal court system, cannot pass survivor benefits to her wife, Amy Cunninghis, who has been the chief caregiver for their 10-year-old son, Daniel.

After attending oral arguments in the case, Golinski and Cunninghis said they were “cautiously optimistic” that the Supreme Court will overturn DOMA. “This touches every aspect of our lives, these 1,100 benefits that we are denied,” Cunninghis said, barley heard over shouts of, “Strike it down!”

Slightly more optimistic, Jennifer C. Pizer, senior counsel with Lambda Legal, which represents Golinski, said that by the end of the arguments it appeared likely that “DOMA will not survive.”

Legally married in California, Golinski and Cunninghis are among the not-married in the eyes of Uncle Sam. Their unions — no matter how long, no matter how strong — are not full marriages because of DOMA. Instead, their unions are a “sort of skim milk marriage,” in the words of Justice Ruth Bader Ginsburg.

This is appalling to all couples in same-sex marriages, but especially to those in which a federal employee is a partner. Those couples, like other married same-sex couples, have problems with such issues as Social Security benefits and the inheritance tax, the subject of Wednesday’s hearing. But they also cannot share the full range of spousal benefits available to other federal workers.

“It’s extremely frustrating . . . to not just have what my heterosexual married colleagues have,” said Golinski, a 21-year federal employee. She also spoke of “this stigma” that DOMA imposes on gay men and lesbians.

It’s a stigma that flows from legalized discrimination.

“I think it’s time for the court to recognize that this discrimination, excluding lawfully married gay and lesbian couples from federal benefits, cannot be reconciled with our fundamental commitment to equal treatment under law,” Solicitor General Donald B. Verrilli Jr. told the court.

Congress passed the law in 1996, and it was signed by then-President Bill Clinton, who has since repudiated it. DOMA “was enacted to exclude same-sex married, lawfully married couples from federal benefit regimes based on a conclusion that was driven by moral disapproval” that the Supreme Court has said cannot be used to justify laws, Verrilli said.

Chief Justice John G. Roberts Jr. wanted to know: Was Congress “motivated by animus”?

Of course no one would say the honorable members of Congress were driven by hostility or spite, even as they wrote anti-gay prejudice into law. It was enough for Congress to declare — in advance of any state’s permitting same-sex marriage — that such unions did not exist in Sam’s half-closed eyes.

“Because of DOMA, many thousands of people who are legally married under the laws of nine sovereign states and the District of Columbia are being treated as unmarried by the federal government solely because they are gay,” said Roberta A. Kaplan. She represents Edie Windsor, who “was treated as unmarried when her [same-sex] spouse passed away, so that she had to pay $363,000 in estate taxes on the property that they had accumulated during their 44 years together.”

Windsor was greeted with a loud cheer from the crowd as she emerged from the courthouse.

However insulting being treated as unmarried is to her and other married same-sex couples, it is all right for the federal government to reject those unions, according to Paul D. Clement, attorney for the Bipartisan Legal Advisory Group. That group represents the House Republican leadership — despite its misleading name — in the effort to uphold DOMA.

“It’s simply not the case that as long as you are married under state law you absolutely are going to be treated as married” by federal law, he told the court.

For gay men and lesbians, that’s the sad truth — for now, but maybe not for long.

Previous columns by Joe Davidson are available at wapo.st/JoeDavidson.

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