Just when you think you grasp what’s going on, someone starts talking about “suspect classes” and “Article III” and “complementary authorities,” and you’re lost again.
Today, however, Justice Ruth Bader Ginsburg, in her hesitant but steely way, offered up perhaps the most easily understood analogy of the season to describe the two-tiered marriage system that has taken root in our country: “The full marriage, and then this sort of skim-milk marriage.”
The courtroom erupted in laughter. Everyone knows skim milk--that thin, blue-tinged liquid that bears no resemblance to what comes from a cow--is awful.
A “skim milk” marriage is one that doesn’t seem whole, one that’s recognized, say, in California, but not by the federal government.
My gay married neighbors in Venice Beach can file a joint state tax return, but unlike my straight married neighbors, are not allowed to file a joint federal tax return. They miss out on the deductions to which heterosexual married couples are entitled.
The case challenging the Defense of Marriage Act was brought by Edith Windsor, an 83-year-old New York widow who inherited a large estate when her spouse died. Had her spouse been a man rather than a woman, she would have faced no estate tax. There was nothing low-fat about the bill she got from the feds: $363,000.
Ginsburg’s observation was a response to the argument put forth by Paul D. Clement, the attorney hired by a group of House Republicans to defend DOMA. (They did so because the president thinks the measure is unconstitutional and refused to defend it. The man who signed DOMA into law in 1996, President Bill Clinton, also thinks it’s unconstitutional. The first half of the hearing was taken up with arguments about whether the House Republicans even had the standing to represent the feds in the case).
DOMA, Clement said, prevents states from “opening up an additional class of beneficiaries,” i.e. married gay couples “that get additional federal benefits.”
Ginsburg took exception to the phrase “additional benefits,” noting that her colleague, Justice Anthony Kennedy, the presumed swing vote in the gay-marriage cases, had just said that there are at least 1,100 federal statutes that affect married couples.
“They’re not a question of additional benefits,” she said. “I mean, they touch every aspect of life. Your partner is sick. Social Security. I mean, it’s pervasive. It’s not as though, well, there’s this little federal sphere and it’s only a tax question.”