As Maine voters go to the polls to decide whether to permit same-sex marriage, a federal court in New York took on the same issue from another angle.

The 2nd District Court of Appeals found unconstitutional the Defense of Marriage Act, a Clinton-era law that recognizes only marriages between one man and one woman.

Although marriage is typically a state responsibility, DOMA affects a variety of areas of federal law, from the tax code to employment benefits.

The case before the court involved Edith Windsor, who was charged with $360,000 in inheritance tax when her partner of 44 years died, even though the couple had been married in Canada. An opposite-sex couple in the same situation would not have had to pay.

Framed that way, it was clear to the court’s majority that the constitutional promise of equal protection under the law could not be kept because of DOMA.

Judge Dennis Jacobs, who wrote the majority opinion, compared bias against gays to other forms of discrimination, such as discrimination against women, and determined that “homosexuals are not in a position to adequately protect themselves from the discriminatory wishes of the majoritarian public.”


This ruling, along with another from the 1st District court that also found DOMA unconstitutional, is headed to the U.S. Supreme Court, perhaps as soon as this session.

These cases are interesting because they frame this issues in the unemotional language of the law. They are not decided on abstract messages about the meaning of marriage or religious doctrine, but as a simple question of fairness.

These court rulings will not directly affect same-sex couples here in Maine. Even if upheld by the Supreme Court, the rulings won’t enable couples to go to town hall and apply for a marriage license, giving them the legal foundation for a stable family, unless a majority of Mainers vote yes on Nov. 6.

Like the judges in New York and Boston, Maine people are being asked if it’s fair to exclude one group of families from the legal protections most other families enjoy.

They are being asked whether a history of bias is enough to justify future bias.

Like the judges, Maine voters should put fairness first.

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