DOMA Fail

By Fatima Baddredine

“Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.” Universal Declaration of Human Rights (“UDHR”), Article 16.

In 1948, the United Nations General Assembly adopted the UDHR in response to the Second World War. The United States was one of the countries that ratified the UDHR – Eleanor Roosevelt played a key role in drafting the UDHR. Regardless of whether the drafters intended for the UDHR to apply to same-sex marriages, its basic concept still applies – adult men and women have a fundamental human right to marry.

In 1996, President Clinton signed the Defense of Marriage Act (“DOMA”) into law, which “defines marriage as a legal union between a man and a woman.” DOMA has prohibited legally married homosexual couples from collecting over 1,000 different federal benefits that are available to married heterosexual couples.

Currently, DOMA has come under increased scrutiny in the federal courts. Last week, Judge Barbara Jones of the Southern District of New York ruled that DOMA violates the Fifth Amendment’s substantive Due Process Clause by denying equal benefits to homosexual couples. Judge Jones argued that DOMA “is not a legitimate method” for “promoting or maintaining consistency in the marital benefits that the federal government provides.” Similarly, last month the 1^st Circuit ruled that DOMA violated the Equal Protection Clause, stating, “Under current Supreme Court authority, Congress’ denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.” Other similar rulings were made in two federal district courts and one bankruptcy court over the past 2 years. The courts based their rulings on the “rational basis” test, which requires a law to “have a reasonable relationship to a legitimate government purpose” in order to uphold treating discriminated groups differently.

The problem with DOMA is that the law appears too based off of moral ideology, rather than a rational, legal basis. Proponents have offered few legitimate reasons for maintaining DOMA. Arguing that society need to protect the “sanctity of marriage” is not an acceptable legal reason for prohibiting legally married homosexual couples from receiving equal federal benefits. Preventing married homosexual couples from receiving the same benefits shared by heterosexual couples will not “defend” marriage, nor will it harm heterosexual marriage.

As a society, we cannot choose to allow some groups to benefit from the government, while explicitly denying other groups the same benefits simply because society morally disapproves of that group.

A fundamental human right cannot be so selective. Society cannot pick and choose which individuals get to benefit from certain human rights. The purpose of having fundamental human rights is to assert that these rights exist for the sake of being human, and as a result, cannot be denied to any human being.

Even if society no longer believes in human rights or the UDHR, DOMA cannot pass the constitutional standard provided under the Equal Protection Clause.