The Washington Post

Court hears arguments in DOMA case

Columnist

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 federal government and workplace issues that celebrated its 80th birthday in November 2012. Davidson previously was an assistant city editor at The Washington Post and a Washington and foreign correspondent with The Wall Street Journal, where he covered federal agencies and political campaigns. 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.

The Freddie Gray case

Please provide a valid email address.

You’re all set!

Campaign 2016 Email Updates

Please provide a valid email address.

You’re all set!

Get Zika news by email

Please provide a valid email address.

You’re all set!
Comments
Show Comments
The Democrats debated Thursday night. Get caught up on the race.
The Post's Chris Cillizza on the Democratic debate...
On Clinton: She poked a series of holes in Sanders's health-care proposal and broadly cast him as someone who talks a big game but simply can't hope to achieve his goals.

On Sanders: If the challenge was to show that he could be a candidate for people other than those who already love him, he didn't make much progress toward that goal. But he did come across as more well-versed on foreign policy than in debates past.
The PBS debate in 3 minutes
Quoted
We are in vigorous agreement here.
Hillary Clinton, during the PBS Democratic debate, a night in which she and Sanders shared many of the same positions on issues
South Carolina polling averages
Donald Trump leads in the polls as he faces rivals Marco Rubio and Ted Cruz heading into the S.C. GOP primary on Feb. 20.
South Carolina polling averages
The S.C. Democratic primary is Feb. 27. Clinton has a significant lead in the state, whose primary falls one week after the party's Nevada caucuses.
62% 33%
Fact Checker
Trump’s claim that his border wall would cost $8 billion
The billionaire's claim is highly dubious. Based on the costs of the Israeli security barrier (which is mostly fence) and the cost of the relatively simple fence already along the U.S.-Mexico border, an $8 billion price tag is simply not credible.
Pinocchio Pinocchio Pinocchio Pinocchio
Upcoming debates
Feb 13: GOP debate

on CBS News, in South Carolina

Feb. 25: GOP debate

on CNN, in Houston, Texas

March 3: GOP debate

on Fox News, in Detroit, Mich.

Campaign 2016
Where the race stands

To keep reading, please enter your email address.

You’ll also receive from The Washington Post:
  • A free 6-week digital subscription
  • Our daily newsletter in your inbox

Please enter a valid email address

I have read and agree to the Terms of Service and Privacy Policy.

Please indicate agreement.

Thank you.

Check your inbox. We’ve sent an email explaining how to set up an account and activate your free digital subscription.