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Posted at 12:53 PM ET, 02/23/2011

Edie and Jerry: The real people behind DOJ's shift on DOMA

By Eva Rodriguez

The Justice Department has just announced that it will no longer defend in court the Defense of Marriage Act -- the Clinton-era law that forbids the federal government from recognizing same-sex marriages.

The department's press release says that the administration came to this conclusion after reviewing the cases of Pedersen v. OPM and Windsor v. United States, but it offers no information about the human beings involved. Below is a Post editorial from last November that provides a few important and -- I'd argue -- compelling details about the plaintiffs that may help explain why the administration reached its decision today.

Edith 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 Spyer died at 77 in 2009 after a decades-long struggle with multiple sclerosis.

Windsor, now 81, was treated like a stranger to Spyer because of the federal Defense of Marriage Act, 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. 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, Passaro was denied benefits for surviving spouses. Because federal law governs the pension plan, DOMA applies.

This month, Windsor filed a lawsuit in New York challenging the constitutionality of DOMA. 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. Windsor and 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.

By Eva Rodriguez  | February 23, 2011; 12:53 PM ET
Categories:  Rodriguez  | Tags:  Eva Rodriguez  
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Next: On and on and on Wisconsin

Comments

Below is a Post editorial from last November that provides a few important and -- I'd argue -- compelling details about the plaintiffs that may help explain why the administration reached its decision today. CERTAINLY BLOWING IN THE WIND IS COMPELLING FOR SOME BUT NOT FOR THE CONSTITUTIONL. REDEFINGING AN ACCEPTED DEFINITI0N TO FIT YOUR SET OF FACTS PROVES YOU DOG WILL NOT HUNT.

Posted by: ZebZ | February 23, 2011 1:39 PM | Report abuse

Likewise if someone marries his sister, and lives in a committed relationship with her for many years, and then she dies, moral nannies will demand full payment for the surviving brother/husband.

Why not? Mothers marrying sons, etc. What's the difference, if not...that...some people believe that God says 'no,' and they are protected in that belief by the US Bill of Rights? There is separation of church and state in this country, but it is permitted to base moral decisions on one's ethical foundation, including the Bible, if that's how moral decisions get made.

Posted by: Jerusalimight | February 23, 2011 1:50 PM | Report abuse

"Likewise if someone marries his sister, and lives in a committed relationship with her for many years, and then she dies, moral nannies will demand full payment for the surviving brother/husband.

Why not? Mothers marrying sons, etc. What's the difference"

Posted by: Jerusalimight "

======================

Co-sanguinous relations result in known, documented physical and psychological problems. If it's male/female, you run high risk of bearing children with rare birth defects. Even if childbirth is not a factor, there are still psychological factors at play. This is especially true of parent/child incest, where power dynamics come into play. Sibling incest has other problems.

None of these issues are present in relations between same-sex unrelated consenting adults. That's the difference.

Posted by: dkp01 | February 23, 2011 1:55 PM | Report abuse

Have I forgotten how to read English after all these years, or are ZebZ's and Jerusalimight's comments illiterate rants?

Posted by: GordonCash | February 23, 2011 1:57 PM | Report abuse

Obama is saving tax payer money. That ought to make the Tea Party people happy.

Posted by: samsara15 | February 23, 2011 2:03 PM | Report abuse

Of course the Obama administration has suddenly discovered a reason not to do what the candidate said he would do. What did we really expect? And, of course, the Post has not set up comments on the headline article for this story.

Posted by: westCAOR | February 23, 2011 2:17 PM | Report abuse

When I die, I want my property to pass on to my two wives without taxation, I am sure that is Constitutionally protected in the pnumbra of several sections and amendments. That satirical point aside, there are ways other than through marriage to have property pass directly to another without taxation. Failure to plan one's estate properly does not make for Constitutional guarantees of same sex marriage.

Posted by: GnirJ | February 23, 2011 2:40 PM | Report abuse

I for one think DOMA is repugnant, but I do understand the purpose of giving spouses tax benefits. The state is trying to encourage the formation and maintenance of the family unit, and if it considers gay people to be outside that then there is no reason to provide them with the same incentives. Gay people are faced with the same issues that non-married heterosexuals have.

Posted by: jmcdavisum | February 23, 2011 2:42 PM | Report abuse

Which congress, Eva?

Posted by: DaveinNorthridge | February 23, 2011 3:20 PM | Report abuse

I know the Republicans in Congress are going to want to defend DOMA in court, but really do they want to? Do they want to go against an 81 year old widow? Spend the resources of the government to defend something that won't make any difference to the average American who needs a job? Really? Why would they do such a thing when it can so easily be thrown in their faces in the next election? Instead of working on getting middle class and poor families on their feet, they'd be spending their time and tax payer's money on a lawsuit against a little old lady! NOT a good position to take. Better to let everyone in a LEGAL relationship marry if they want to, as they aren't breaking any laws, and let the states collect the marriage revenue!

Posted by: tamr1212 | February 23, 2011 7:11 PM | Report abuse

pcow

I know Obama has said publicly that he is in support of Gay Marriage, but now there is a youtube clip of him talking about how it's a sin, and that all Gay people will not be saved:

http://fms.nu/eMh5mc

This is really good stuff. He has bee two faced about so many issues now. I don't know why I ever voted for him.

Posted by: webcontent2011 | February 24, 2011 4:56 AM | Report abuse

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