The Defense of Marriage Act; A New Turning Point
During his 2009 confirmation hearings, Attorney General Eric H. Holder Junior noted, “The duty of the Justice Department is to defend statutes that have been passed by Congress, unless there is some very compelling reason not to.” Last Wednesday Mr. Holder seems to have discovered one of those compelling reasons not to enforce a law enacted by Congress. In a letter to congress the Department of Justice said, the Defense of Marriage Act is unconstitutional and will no longer defend the 15-year-old law in federal court.
President Clinton signed the DOMA in 1996, it allows states not to recognize same-sex marriages performed in other states and also provides the federal definition of “marriage” which excludes same sex-couples. In a turn of precedent, Holder released this statement, “After careful consideration, including a review of my recommendation, the president has concluded that, given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny.” The Justice Department takes issue with Section 3 of the DOMA which limits marriage benefits to unions of members of the opposite sex. In short this means that the Obama administration will no longer defend the constitutionality of section 3 of the DOMA. Instead, this responsibility will be left to the Congress to determine.
What Does This Mean for Gay Rights?
Currently there are two challenges to DOMA proceeding in the federal court, Pederson v. OPM and Windsor v. United States. Usually when the executive branch disagrees with the politics of a specific law or the constitutionality of that law, the Justice Department will defend its enforcement and implementation in and out of court. Beginning with these two cases the Justice Department will no longer defend the constitutionality of the DOMA. The Justice Department has until March 11 to respond to the two suits mentioned. When the constitutionality of the DOMA is challenged in these two suits, the Department of Justice will leave the burden of defense to Congress or other supporters of the law.
This does not mean that the DOMA is dead, rather the administration will continue to enforce the rules of the DOMA within the federal realm, but wont defend it in the court. For example, the IRS will not acknowledge the marriages of same-sex couples in Massachusetts. The Justice Department has until March 11 to respond to the two suits mentioned above. When the constitutionality of the DOMA is challenged in these two suits, the Department of Justice will leave the burden of defense to congress or other supporters of the law, who can still file their own briefs on the topic.
From a distance it seems as if the Obama administration’s decision means little in terms of actual change for gay rights. However, Anthony D. Romero, the executive director of the American Civil Liberties Union, has a different view, “This is a great step by the Obama administration and a tipping point for the gay rights movement that will have ripple effects in contexts beyond the Defense of Marriage Act,” and “It will reach into issues of employment discrimination, family recognition and full equality rights for lesbian and gay people.”
If Congress decides to defend the DOMA, they will likely face the same challenges the defenders of California’s Proposition 8 saw when that state’s governor and attorney general refused the job. In a recent New York times article, it was noted that the arguments and witnesses used by the defenders of Proposition 8, “were utterly dismantled by the all-star legal team of David Boies and Ted Olson”. Congress would likely have to take the same approach to the DOMA and win the argument concerning the harms of sam-sex marriage. As Linda Hirshman notes in the New York times:
In the end, the opponents of same sex marriage were reduced to a perfectly circular argument that would not survive a freshman philosophy class, much less law school. They asserted that the meaning of marriage was a union between opposite sexes, then concluded that allowing any other union would destroy the meaning of marriage as they had just defined it. They were forced to employ such twisted logic because there is no empirical evidence to support the exclusion of gays from marriage; the prohibition is the last vestige of the religious belief that homosexuality is sinful, a rare application of the language of the Old Testament to otherwise victimless behavior in a secular society. (One of the hardest things about talking to God is finding an expert to give a proper deposition.
The defenders of the DOMA would have to argue in federal court and prove how the country would be damaged if same sex spouses qualify for equal protections. Such a principled stance looks both foolish and mean. While it isn’t a complete reversal of federal policy, it is a start.