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. New York state, where they resided at the time, did not grant marriage licenses to same-sex couples. The state did recognize their foreign marriage certificate, but the federal government did not.
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, set to be heard on March 27, 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.
Indeed, arguments for redefining marriage frequently hinge on questions of government benefits to same-sex couples. But more sensible solutions are possible. As this case shows, society can remove this burden without rushing to abolish marriage as the union of a man and a woman.
The Heritage Foundation has argued for eliminating the estate tax, popularly called the “death tax,” for more than fifteen years. In an influential 1996 report, Heritage argued that such reform was in line with the American dream and sense of justice. Tax law should not 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.
Killing the death tax would encourage economic growth, add jobs, and allow offices and factories to buy equipment that elevates productivity and wages. Lower capital costs mean new small businesses.
Best of all, such tax reform would treat all Americans fairly.
Ask yourself: 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.
By contrast, nothing is unfair about government recognizing marriage as a union of a man and a woman (as a new Heritage report makes clear). 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?
Reflecting on these questions reveals good reasons behind DOMA and the decisions of forty-one 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.
The Court ought not settle these matters by declaring its ideological will on the country in a most radical way. There are solutions short of a judicially imposed revolution that could meet concerns before the Court.