DOMA Doubts

By Advocate Contributors

Originally published on Advocate.com April 11 2011 4:00 AM ET

 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.” Equal rights watchers should be prepared, however, for a new wave of demeaning legal rhetoric. House speaker John Boehner wasted no time in criticizing the administration’s move. Republican leadership vowed to defend the law and voted to hire what may be an army of outside attorneys in order to do so. “I think we’ll see assertions like those the Bush administration made,” says Lambda Legal national marriage project director Jennifer Pizer, “and we may see some new, creatively uglier, and perhaps even less grounded-in-reality arguments than we’ve seen to date, as there are some passionate antigay activists and others dedicating themselves to this field. It sometimes looks like the desperation of the last-gaspers, but I don’t expect the debate to be over imminently, despite how much some of the arguments strain credulity.”

In March, House Democrats reintroduced legislation to repeal DOMA, accompanied by a first-ever companion bill in the Senate, sponsored by a healthy coterie of senators including Dianne Feinstein of California, Kirsten Gillibrand of New York, and Patrick Leahy of Vermont, chairman of the Senate Judiciary Committee. (Be on the lookout for the Senate’s first hearing on the issue, should legislators put some muscle behind the bill.) Though the DOMA repeal bill doesn’t stand a chance in the Republican-controlled House, its introduction is nevertheless an important step toward equality.

What’s yet to be seen is whether President Obama will mitigate the harmful, everyday effects of a 15-year-old legislative mistake. “The administration took a middle-road position by acknowledging DOMA’s unconstitutionality but continuing to enforce it until the courts or Congress invalidate or repeal it,” Pizer says. “And yet there likely are many situations in which the administration legitimately can and should reduce the harmful effects of DOMA. We already have seen some examples, and I believe we will see more in the coming months.”