Publisher’s Perspective: The DOMA dance

The headlines last week were exciting, and also misleading: Obama Declares DOMA Unconstitutional! But did President Barack Obama put an end to the offensive Defense Of Marriage Act, passed by a Republican-led Congress and signed into law by President Bill Clinton in 1996? Not by a long shot.

In fact, while stating that the administration would no longer defend DOMA in court, Obama’s Justice Department said they will continue to enforce the act until it is repealed or declared unconstitutional in a definitive court ruling.

Let me take a stab at explaining, for my benefit as well as yours.

DOMA defines marriage, from a federal perspective, as exclusively the union between a man and a woman. It prevents the federal government from recognizing same-sex marriages, and it allows states to deny recognition of same-sex unions made legal elsewhere.

States grant marriage rights, so this was all superfluous prior to 2004, when the Supreme Judicial Court of Massachusetts ruled that restricting marriage to heterosexuals violated that state’s constitution. Since then, same-sex marriage has been made legal in four more states (Connecticut, Iowa, Vermont and New Hampshire) and the District of Columbia. Three additional states (New York, Rhode Island and Maryland) recognize those marriages. And three states (New Jersey, Illinois and Hawaii) sanction civil unions that embrace most marital rights.

So DOMA now has real impact. It denies more than 1,000 provisions of federal law to thousands of legally married same-sex couples. These include costly federal health, Social Security, pension and tax benefits.

It is the job of the Justice Department to enforce legislation passed by Congress and signed into law by the President, and to defend those laws when they are challenged in court. Until last week, the Obama Justice Department held its nose and defended DOMA. But two pending lawsuits would force Justice to argue that there is no history of discrimination against gays and lesbians, or that we can change our orientation. Whether for moral, legal or political reasons, it was more than the Obama administration could bear.

The President and I have concluded that classifications based on sexual orientation [should be subjected to a strict legal test intended to block unfair discrimination], Attorney General Eric H. Holder Jr. stated in a letter to members of Congress. By that standard, he concluded, DOMA is unconstitutional.

That kind of unconstitutional discrimination is on vivid display in one of the pending lawsuits. Edith Windsor married her wife in Canada, and the marriage was legally recognized in New York, their state of residence. There is no federal estate tax for property passing between spouses upon death. But when her wife died, Windsor was forced to pay $360,000 in estate taxes because of DOMA.

With Obama’s Justice Department bailing, what will happen to Windsor’s case? DOMA can be defended by others, including Congress and even conservative legal groups. Speaker of the House John Boehner has said he is reviewing ways to support the law. But the significance of Justice with all of its legal firepower changing sides cannot be overstated.

Same-sex marriage will ultimately be decided by the Supreme Court. The issue could arrive there by two routes: DOMA and California’s Proposition 8. Federal district courts have already declared both unconstitutional. But even if positive, the results could be quite different.

A finding that Prop 8 is unconstitutional would likely overturn dozens of similar state same-sex marriage bans including Florida’s and make same-sex marriage legal throughout the nation. With DOMA, the Supreme Court could strike certain provisions of the law without forcing states to recognize same-sex marriage.

Of course, the conservative Roberts Court could uphold both laws.

In that respect, the position taken by President Obama may be pivotal. For the first time, Justice is arguing that gays and lesbians qualify for the greater protection afforded classes like race or gender. Where there is differential treatment, discrimination is presumed and government interest must be proved overriding.
Of course, all consideration of same-sex marriage even Supreme Court decisions rides the wave of public opinion. According to an Associated Press survey last year, the public is evenly divided: 52 percent believe the federal government should give legal recognition to same-sex marriages. That’s more than double the number 15 years ago.

And in every state, a majority of those under 29 now supports marriage equality.

But opinions still vary by region and can often be perplexing. Thirty states have constitutional amendments banning same-sex marriage, most passed in the last decade.

During his 2008 campaign President Obama opposed same-sex marriage rights, but he also said his opinion is evolving.

I struggle with this, he said recently. I have friends and people who work for me who are in powerful, strong, long-lasting gay or lesbian unions.

Based on his administration’s decision on DOMA, I think he’s changed his mind. I think he’s concluded that there’s no good reason for government to treat us differently when it comes to marriage and family.