Defense Of Marriage Act Proves Indefensible

February 24, 2011 Current Commentary Comments Off
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President Obama, who is a former constitutional scholar, and his chief legal beagle had a belated but welcome epiphany yesterday: A president is not obliged to defend an indefensible law, and the Defense of Marriage Act is indefensible.

In other words, just what I wrote in June 2009, after Obama and his Justice Department offered offensive justifications, including long-ago incestuous and adolescent marriages, for the federal government’s refusal to recognize today’s same-sex adult marriages that are valid under state or foreign law. When the gay community responded with outrage, Obama’s minions asserted that an executive must defend any legislation on the books, no matter how clearly it violates citizens’ rights, until the legislation is struck down by the courts.

I can’t take credit for the continuing legal education of the president and Attorney General Eric Holder. The change of heart is doubtless due to a string of stinging lower-court reversals and a sense that the political tides are turning as Americans increasingly realize that same-sex marriage is here to stay, and that it has not brought an end to civilization as we know it.

Who woulda thunk it?

Holder announced the presidential change of heart in a letter to House Speaker John Boehner, R-Ohio. Holder said the executive branch has determined that Section 3 of the 1996 legislation, which prevents any federal recognition of same-sex marriage, violates the Constitution’s equal protection clause.

Not long ago, Boehner and most fellow Republicans would have denounced Holder’s letter, along with the very idea of same-sex marriage. But Republicans too can see which way the political and legal winds are blowing. Sidestepping the issue of whether DOMA was ever a reasonable law — which it was not — Boehner spokesman Michael Steele offered the following reply: “While Americans want Washington to focus on creating jobs and cutting spending, the president will have to explain why he thinks now is the appropriate time to stir up a controversial issue that sharply divides the nation.”

The idea that the economy has to recover before the government recognizes Americans’ civil rights is just as nonsensical as the idea that the institution of marriage needs a “defense” against gay couples that want to participate in it. But at least it isn’t as hateful. Maybe that’s progress, too.

From the day it was signed into law by President Bill Clinton, a self-proclaimed friend of gay Americans, the Defense of Marriage Act was an irrational act of legislative spite directed at a politically unpopular minority. The polite legal word for hate is “animus,” and this is the word that Holder’s letter used to describe the law’s motivations. It is also one of the words U.S. District Judge Joseph L. Tauro used when he declared DOMA unconstitutional last July.

The executive branch’s new position will affect at least two more cases currently pending that involve DOMA. Pedersen v. OPM, a case in Connecticut, concerns the denial of marriage-related protections for federal benefits such as Family Medical Leave Act benefits and federal laws relating to state pension plans. In New York, Windsor v. United States centers on the federal government’s refusal to recognize a couple’s marriage for federal estate tax purposes. Holder advised Boehner that “[...] the President has instructed the [Justice] Department not to defend the statute in Windsor and Pedersen, now pending in the Southern District of New York and the District of Connecticut. I concur in this determination.”

By refusing to defend the legislation, the administration will be all but asking the courts to strike it down.

Though the courts are moving faster than politicians or the public, there is a growing consensus across our society that sexual orientation is a private matter that ought not to involve the government. From the Supreme Court’s 2003 decision in Lawrence v. Texas (which overturned laws against consensual adult homosexual conduct) to U.S. District Judge Vaughn Walker declaring California’s Proposition 8 unconstitutional last August, we have made a great deal of progress in a relatively short time. Legislation to repeal the military’s Don’t Ask, Don’t Tell policy was finally enacted in December, after that policy also was struck down in the courts. But the policy remains in effect until after military leaders certify that it will not damage the armed forces’ readiness, effectiveness, unit cohesion, recruiting and retention. At that point, a 60-day waiting period begins before the policy is officially scrapped.

Though I think the ultimate acceptance of same-sex marriage is inevitable, it still remains to be seen whether that will happen sooner rather than later. Even with the administration’s change of heart, I expect the Supreme Court will eventually weigh in on whether the federal government must recognize same-sex unions. At the same time, another line of cases will eventually develop over a separate section of DOMA, which purports to give states the power not to recognize other states’ same-sex marriages. If these marriages are not vindicated in the courts, we will have to wait until politicians feel it is safe to stop discriminating.

The president, for one, isn’t there yet, because he isn’t sure what it will cost him. White House Press Secretary Jay Carney said yesterday that Obama is still “grappling” with his own stance on gay marriage, but has always seen DOMA as “unnecessary and unfair.” As Boehner’s spokesman observed, it’s a controversial issue, and taking a strong stance could put the president on shaky political ground.

While it would be nice for Obama to come down firmly on the side of fairness and equal rights for everyone, it isn’t necessary. What is necessary is for the U.S. government to recognize and respect the marriages that all Americans, and foreigners too, decide to form. Yesterday’s announcement does not get us all the way there, but it brings us closer.


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