Arrivederci DOMA

The economic foundation of gay marriages received a big boost with the June 26 US Supreme Court decision in United States v. Windsor. In a companion case (no pun intended), the court refused on the technical ground of “standing,” to decide on the validity of Proposition 8 and in so doing, effectively legalized same sex marriages in California.

According to section 3 of a 1996 US Federal law popularly known as DOMA (Defense of Marriage Act), a marriage is “a legal union between one man and one woman as husband and wife,” and defines the term “spouse” as “a person of the opposite sex who is a husband or a wife.”

<Incidentally, this definition echoes our own  EO No. 209 (a.k.a. the 1987 Family Code of the Philippines) which defined, under Article 1, a marriage to be “a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life.”

It was only in 2009 when DOMA was challenged by Ms. Edith Windsor. Prior to her filing the complaint, Ms. Windsor had been married in Canada to Ms. Thea Spyer pursuant to the Canadian Civil Marriage Act, which recognized same-sex unions. Years later, the couple moved to New York where their marriage was also acknowledged on the basis of comity. When Spyer died in 2009, Windsor sought to claim the federal estate tax exemption for surviving spouses. Her claim was denied since pursuant to DOMA, she could not be considered a “spouse”. Windsor challenged this provision in the District Court of New York and from there her case was elevated all the way to the Supreme Court.  

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In an expectedly divided 5-4 decision, the US Supreme Court struck down section 3 of DOMA as unconstitutional. It held that the law had no legitimate purpose and that it violated the equal protection of the laws guaranteed under the 5th and 14th Amendments. The Court took note of the fact that, at state level, New York had recognized Windsor’s same-sex marriage. And yet, because of DOMA, they were still considered unmarried from a federal law standpoint. Speaking for the majority, Justice Anthony Kennedy wrote:

“DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. By this dynamic DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage.”

DOMA was also invalidated on the ground that it taxed the health benefits provided by employers to their workers’ same-sex spouses which raised the cost of their overall health care. The majority also believed that DOMA could have serious psychological repercussions on the children of same-sex spouses as it “humiliates tens of thousands of children now being raised by same-sex couples… [by making] it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”

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The effects of the decision were immediate. A green card application from a married gay couple has been approved for the first time by the US Citizenship & Immigration Services. Also, within minutes after the DOMA decision was released, a New York City judge halted the deportation of a gay Colombian man married to a US citizen.

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While the decision seemed to be limited to the principle that federal law cannot supplant a state’s policy determination regarding the validity of same sex marriages, the ruling has emboldened gay rights’ advocates to push the envelope farther. They claim that the decision can also be used to invalidate state laws that discriminated against same gender unions. For example, in Michigan where marriage is defined as between one man and one woman, a judge issued a preliminary injunction against a state law that only allows public benefits for married spouses of government employees.

Another Michigan judge allowed a lawsuit attacking the constitutionality of the definition of marriage itself. The case arose when an unmarried couple, Jayne Rowse and April De Boer, who were living in a conjugal dwelling, were barred from adopting each other’s child. In Michigan, only single people or unmarried couples may adopt. But after the DOMA decision, the suit was amended to include a challenge to the state’s gay marriage ban. Interestingly, the ban was passed by Michigan voters in 2004 with a 59% majority. But in a recent May 2013 poll cited by Atlantic Wire, 57% of voters in Michigan are now in favor of same sex marriages. 

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Query as to what long-term effects this decision will have on Philippine jurisprudence? On the one hand, there is our Court’s reliance on U.S. rulings as persuasive guideposts in deciding cases. On the other hand, there is the particularly conservative cultive and strong Christian values which permeate our laws. For instance, our Family Code goes beyond defining marriage as one between man and woman but also specifies that its purpose must be for the “establishment of conjugal and family life.” It is supposed to forestall the possibility of divorce—long recognized in the US—by declaring marriage to be a “permanent union.” Perhaps the latter is what egged Marikina Rep. Marcelino Teodoro to refile an “anti-divorce and unlawful dissolution of marriage bill,” a measure which the Gabriela party-list representatives will certainly oppose. For her part, Dinagat Islands Rep. Arlene Bag-ao filed House Bill 110 which aims to eliminate all forms of discrimination against gays and lesbians. In the Philippines, the battle has just begun.

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“I say let them marry. Why shouldn’t they be as miserable as the rest of us?— Jack McCoy, Law & Order

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