This piece waas in today's Washington Post.
The Benefits of Fairness
A lawsuit tests the federal protections owed to same-sex couples.
NANCY GILL, a 21-year veteran of the U.S. Postal Service,was barred from insuring her spouse under the federal employee health plan. Randell Lewis-Kendell was denied a $255 lump-sum Social Security payment when his spouse of 30 years died in 2007. Keith Toney was told he could not change his name on his passport to reflect his marriage.
Ms. Gill and Mr. Lewis-Kendell and Mr. Toney each married same-sex partners in Massachusetts and continue to live in the state, which has legally sanctioned such unions since 2004. But they were denied federal spousal benefits because Section 3 of the Defense of Marriage Act (DOMA) defines marriage as the legal union of one man and one woman. These three and 12 other married gay Massachussets residents recently sued the federal government, arguing that Section 3, as applied in their cases, is unconstitutional because it denies them the equal protection of the law. They are right.
We have long supported legal protections for all committed couples. We have, however, been skeptical of attempts to use the courts -- rather than the political process -- to advance the cause of same-sex marriage. This case is different. The plaintiffs aren't arguing that they should be allowed to marry or to call their relationships marriages; they are married in the eyes of their home state, which has concluded that there are no legitimate reasons for denying these couples the full rights and responsibilities of marriage.
To show that its actions are constitutional, the federal executive branch must demonstrate that it has a rational basis for denying benefits. According to the legislative history, 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."
But is traditional marriage strengthened by forcing Ms. Gill to pay extra for medical coverage for her partner when her partner could be covered at no additional charge under the federal health plan that already includes Ms. Gill and the couple's two children? Are traditional notions of morality truly protected by denying a man grieving the loss of his lifelong companion a $255 Social Security payment that often goes toward funeral expenses? Are states' rights bolstered by the State Department's decision to block a name change on a passport when that change is already reflected on other forms of identification, such as a driver's license?
President Obama is on record opposing DOMA. Although the Justice Department typically defends acts of Congress in court, Mr. Obama should ask his legal advisers to determine whether they, like the plaintiffs, believe DOMA as applied in this case is unconstitutional. If so, Mr. Obama should consider whether this is one of those rare instances where the Justice Department declines to defend a law.
The plight of those described in the lawsuit raises profound questions about the legality, fairness, decency and wisdom of denying benefits to committed same-sex couples -- regardless of marital status or home address. This larger question is not before the Massachusetts federal trial court, but it should be on the minds of all who care about justice.
Overall, this is a good editorial. This is a simple issue of fairness. Why should the federal government get to keep all of the money I contributed to my retirement account if I die before using it when M and I contributed to it together for OUR old age? Is the answer that I should be punished just because I am gay?
I do disagree with this editorial on one point. The Post says they have been "skeptical" of attempts to gain rights via the courts instead of the political process. But the courts have always been the place when minorities have gotten their rights. Brown v Board of Education anyone? Do you really think the majority population was prepared to vote to do away with desegregation? And yet we know it was the right thing to do, and further, it was the right thing to do right then. Waiting for the public to get used to the idea would have been the wrong, and indeed the immoral, thing to do.
The majority seldom grants rights to minorities and it offends me that they should get to. I serve my country and work just as hard as my heterosexual colleagues. It is profoundly unfair that they should receive more compensation, in the form of benefits for their spouses, for doing the same work. I want to be treated equally. And I reject that people should get to vote on my equality or that I should wait until they have gotten used to the idea of my existence.