There is a Perfect Solution in the DOMA Case, And It’s Not Redefining Marriage


As the Supreme Court heard oral arguments on the Defense of Marriage Act (DOMA) on Wednesday, many casual observers focused on what they call the fairness of redefining marriage. But what if I told you that the dispute at the heart of the DOMA case could have been avoided had Congress enacted fairer tax reform years ago?

Let’s look at the facts: In 2010, Edith Windsor sued the federal government, demanding a refund on taxes she paid upon inheriting the estate of her same-sex partner.

The couple had obtained a marriage license in Toronto three years earlier. The state of New York, where they lived at the time, didn’t grant marriage licenses to same-sex couples. The state did recognize their foreign marriage certificate, but the federal government didn’t.

And so when her partner died in 2009, Ms. Windsor was forced to pay over $350,000 in federal estate taxes because she didn’t qualify for a marital exemption.

The lawsuit before the Supreme Court seeks to strike down the section of DOMA that defines marriage for federal purposes as the union of a husband and a wife. In other words, to avoid this tax burden, the lawsuit seeks to redefine marriage.

But society can remove burdens and solve problems without rushing to abolish marriage as the union of a man and a woman.

The Heritage Foundation, where I work, has argued for eliminating the estate tax – popularly called the “death tax” – for more than 15 years. In an influential 1996 report, Heritage policy expert William W. Beach argued that such reform was in line with the American dream and sense of justice. Tax law shouldn’t discourage savings and investment, nor punish hard work and thrift. Nor should it encourage Americans to consume now in order to avoid passing on wealth to loved ones because they would be taxed.

As I asked Suze Orman last night on Piers Morgan’s show on CNN, what if Edith Windsor’s sister, rather than a same-sex partner, had died after living with her for decades? It would be arbitrary and thus unfair to redefine marriage to grant Ms. Windsor tax relief simply because she was in a same-sex sexual relationship while not granting that relief if she were in a similar, but non-sexual, relationship.

Nothing is unfair, however, about government recognizing marriage as a union of a man and a woman. Every marriage policy draws lines, leaving out some types of relationships; fairness forbids arbitrary line-drawing. Determining which lines are arbitrary requires answering two questions: What is marriage, and why does it matter?

Good reasons are behind DOMA and the decisions of 41 states to protect marriage as we always have known it. Marriage exists to bring a man and a woman together as husband and wife to be father and mother to any children their union produces.

Not every married man and woman will produce new children, but every new child comes from the unique union of a man and a woman. Every child needs a mom and a dad. Marriage helps make men and women responsible to each other and to any children they might have. Decades of social science, including the most recent and robust studies, confirm that children tend to do best when raised by their married mother and father.

We should seek to craft good public policy that benefits all Americans. That doesn’t require redefining an institution so central to civilization as marriage. Sometimes it just means repealing a tax.