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Past and Present: DOMA and Equal Protection

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In June, the U.S. Supreme Court will issue its decision in United States v. Windsor, the case addressing the constitutionality of the 1996 Defense of Marriage Act, or DOMA.

In 2007, Edie Windsor married Thea Spyer after 40 years of partnership. Two years later, when Spyer died, the federal government required Windsor to pay $363,000 in federal estate taxes on her wife’s property, because it did not recognize their marriage.

While Windsor is a federal case, the core argument that DOMA violates the Constitution’s Equal Protection Clause originates in a state-level case. In 1948’s Perez v. Sharp, the California State Supreme Court established that the right to choose a marital partner is a constitutionally protected right.

When Andrea Perez-- a Mexican American woman-- and Sylvester Davis-- an African American man-- applied for a marriage license, the Los Angeles County Clerk refused. Under California law, Mexican Americans were legally white, and therefore Perez and Davis would be violating the California civil code that prohibited marriage between white people and black people.

Perez petitioned the California Supreme Court for the right to marry. The Court held that marriage is a fundamental right and that laws restricting that right must not be based solely on prejudice, in accordance with the Equal Protection Clause of the U.S. Constitution.

In subsequent years, Perez served as precedent for landmark marriage cases, such as the 1967 U.S. Supreme Court case Loving v. Virginia that invalidated anti-miscegenation laws, and the 2007 case that established same-sex marriage rights in Massachusetts.

With these cases, the argument in Windsor that the Equal Protection Clause also protects an individual’s right to marry stands on 66 years of history.

Dr. Robin C. Henry holds a Ph.D. in U.S. history from Indiana University and is an associate professor in the history department at Wichita State University. Her research examines the intersections among sexuality, law, and regional identity in the 19th- and early 20th-century United States.