DOMA Doubts



 The so-called defense of marriage act, as the bill’s author, former Georgia congressman Bob Barr, asserted in testimony before the Senate Judiciary Committee in 2004, was never intended to “dictate morals from Washington.” But the Clinton-era bill has done just that. Denying federal recognition to legal marriages from California or Massachusetts or New Hampshire not only has its measurable consequences — the spousal benefits denied, the citizen sponsorship opportunities nixed — but also carries with it broad implications of state-sanctioned discrimination, now a buzz phrase among gay and lesbian rights advocates. Whatever backflips antigay groups do to justify their positions, disapproval still has its roots in disgust and fear — of showering with a gay service member, perhaps, or sharing restroom facilities with a transgender person.

Atty. Gen. Eric Holder’s February announcement that the Obama administration won’t defend section 3 of the law — which defines marriage for federal purposes to the exclusion of gay people — was a sea change with respect to LGBT rights, even if it may have been an inevitable one for this president: Legal challenges to DOMA in the jurisdiction of one federal court of appeals forced the hand of the administration to determine whether laws discriminating on the basis of sexual orientation warrant greater scrutiny.

“There is, regrettably, a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities, based on prejudice and stereotypes that continue to have ramifications today,” Holder said. He went on to quote the landmark U.S. Supreme Court opinion in Lawrence v. Texas: “Indeed, until very recently, states have ‘demean[ed] the existence’ of gays and lesbians ‘by making their private sexual conduct a crime.’ ” This is a thoughtful assessment for a Justice Department that until recently had deemed DOMA to be an adequate compromise for a “still-evolving understanding of the institution of marriage.”

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