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Marriage injustice

Sunday, November 21, 2010; 7:45 PM

EDITH "EDIE" WINDSOR and Thea Spyer were together for 44 years and legally married since 2007. They lived in New York, which recognizes same-sex marriage. But none of that mattered when Ms. Spyer died at 77 in 2009 after a decades-long struggle with multiple sclerosis.

Ms. Windsor, now 81, was treated like a stranger to Ms. Spyer because of the federal Defense of Marriage Act (DOMA), which recognizes only marriages between one man and one woman. She was forced to pay $350,000 in federal inheritance taxes.

Gerald V. Passaro II and Thomas M. Buckholz had been a couple for 13 years when they were married in 2008 in Connecticut, which legally blesses such relationships. Mr. Buckholz had worked for 20 years for Bayer Corp., which extends certain benefits to domestic partners; he was also vested in the company's pension plan. But when he died in 2009, Mr. Passaro was denied benefits for surviving spouses. Because federal law governs the pension plan, DOMA applies.

This month, Ms. Windsor filed a lawsuit in New York challenging the constitutionality of DOMA. Mr. Passaro is one of the plaintiffs in a separate lawsuit in Connecticut. Their experiences demonstrate the injustice of this law.

DOMA was created for the purposes of "defending and nurturing the institution of traditional heterosexual marriage," "defending traditional notions of morality" and "protecting state sovereignty and democratic self-governance" - dubious goals, at best.

How does the denigration of committed same-sex relationships strengthen opposite-sex unions? How could it be moral to pile hardship upon grief by forcing surviving spouses to deal with financial strains others are shielded from? How is federalism bolstered when states are prevented from applying policy and legal preferences in defining marriage, long considered the states' domain?

This year, a Massachusetts judge ruled that DOMA violated the equal-protection rights of same-sex married couples. Ms. Windsor and Mr. Passaro offer convincing arguments for why the jurists overseeing their respective cases should reach the same result.

Plaintiffs nationwide will probably try to chip away at DOMA's indefensible foundations. And the Supreme Court may yet have a chance to weigh in. But justice would best and most gratifyingly be served if Congress simply repealed the law, once and for all.

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