More than 40 years ago, Edith Windsor and Thea Spyer fell in love and spent the rest of their lives together in upstate New York. In 2007, taking advantage of the legalization of same-sex marriage across the border, they were married in Ontario.

Thea Spyer died in 2009 and left her estate to her partner. New York state recognized their Canadian marriage but, under the provisions of the Defense of Marriage Act (DOMA), the United States government did not. The result was a US$600,000 inheritance tax obligation that would have been $0 had the two women been recognized as married by the Internal Revenue Service. Windsor has taken the case all the way to the US Supreme Court.

Apart from the complex legal background, the plaintiff’s case is very strong from both a sentimental point of view and from the point of view of simple fairness and justice. I have no qualms about a court ruling which would grant her and others (such as siblings remaining in their ancestral home together) the same rights to tax-free inheritance that married couples enjoy.

But if this case were only about tidying up the tax code, you never would have heard of it. Instead, gay lobby groups have framed it as an injustice perpetrated against lesbians because they were lesbians. The villain here is DOMA. In its view, marriage must be between a man and a woman with respect to federally funded benefits (including tax breaks) for married couples.

Edith Windsor has a legitimate grievance, but the legal cause of her grievance is not directly related to DOMA: a legal challenge to DOMA based on “equal protection” should be considered groundless.

If DOMA is not the culprit, what is? First, consider DOMA’s premise: the sexual, procreative relationship between a man and a woman that is marriage should be recognized and protected in civil law as distinct from all other forms of interpersonal relationship, sexual or not. In this, DOMA is absolutely correct. This does not undermine the principle of equal protection.

It is only the assignment of a “for married couples only” label to particular benefits that should be challenged, not DOMA itself. This is where the injustice has taken place and it is here that the remedy should be applied. But the IRS has never been an easy target, while marriage in its culturally weakened state certainly is.

“For married couples only” vs “For married couples and others”

The family shares many characteristics with other groups on civil society. In particular, all of them need to own property in order to carry out their “missions”. The current inheritance tax structure gives conventional couples the flexibility of joint property ownership without fear of financial disadvantage if a spouse dies. But other “domestic partnerships” exist. It is very common for single siblings to live together or to merge households after the death of a spouse. Such arrangements also deserve preferential consideration. One consequence of the sexual revolution has been the emergence of many forms of relationships besides marriage that could legitimately petition for domestic partnership status.

At this point many gay activists might remind us that “civil unions” were supposed to provide gay couples with this domestic partnership status without changing the definition of marriage, but since the pro-marriage forces opposed even civil unions, the gay rights movement “had no choice” but to push for marriage “equality”.

However, the proposed civil unions were not a modification of the law to separate that which uniquely pertains to marriage from that which legitimately pertains to many other relationships as well. Instead, they were “marriage type B” still using a “couples based” notion of sexual union and still restricting their application, in imitation of authentic marriage, to two people unrelated by ties of blood.

This “unrelated couples only” construct, however, is completely arbitrary in any context other than the procreative sexual relationship that is at the core of real marriage. This construct also fails to repair the injustice in the tax code with respect to strong and healthy domestic partnerships formed by, for example, siblings: the case of the Burden sisters comes to mind here. In order to be truly just, domestic partnerships created to address issues of property rights should treat any possible sexual relations within that partnership as completely irrelevant.

So a form of joint property rights that is related to but separable from civil marriage is needed. This should recognize the logic of the statement “all marriages are domestic partnerships, but not all domestic partnerships are marriages”. As few, if any states have this notion in their law, the federal tax code could define some criteria which are automatically met by individuals who are in a state recognized domestic partnership or marriage, but for all others, “…fill out and attach form 1040-DP…” or something like that.

So where does this leave DOMA?

Ideally, the Supreme Court will rule in Edith Windsor’s favor with respect to the tax obligation — but on grounds other than “equal protection”. But even if the court rightly recognizes the fallacy of putting “equal protection” and DOMA in mutual opposition, it is still possible that DOMA will fall. US law leaves the regulation of civil marriage and most related issues (like adoption) up to the states. If domestic partnerships for property and tax purposes were created, this would eliminate a major federal interest in marriage. At least in this case, DOMA would be irrelevant. Although there are quite a few other federal regulations that use the term “marriage”, they may be addressed in a similar manner. This path may offer constitutionally reasonable grounds for throwing it out without any impact on the content of marriage debate.

In our contemporary society, this may be the best result that I can hope for. But should the court rule that defining marriage as between a man and a woman violates the “equal protection” clause, the resulting harm to parent’s rights, children’s welfare, religious liberty, and stability of families in general that will follow may take decades to repair. For the sake of our families, may true justice prevail.

Paul T Thordarson (aka ptt) is a systems thinker and occasional freelance writer living in the state of Massachusetts, USA.