In 1996, the U.S. Congress overwhelmingly passed the Defense of Marriage Act (DOMA) (Pub. L 104-199), barring the federal government from conferring upon those who enter into a same-sex marriage “all federal protections, responsibilities, and benefits that accompany any other marriage in America” and “for the first time . . . claimed for the federal government the power to give states permission to ignore the lawful marriages performed in other states.”[1] At the time, passage of DOMA was recognized as being “largely symbolic, since no state allowed gay unions.”[2] Passage also reflected the conventional wisdom of the time—a strong majority of Americans opposed granting same-sex couples the right to marry. In 2011, however, 15 years after the passage of DOMA, five states and the District of Columbia permit same-sex couples to marry, so the harm that once was hypothetical is reality for tens of thousands of same-sex spouses. The predicaments that same-sex spouses face—including being ineligible to receive survivors’ benefits from Social Security, lacking the “right to sponsor a foreign born partner for immigration,” and being denied more than 1,100 other federal rights and responsibilities shared by opposite-sex married couples—now occur every day.[3] Public opinion also has shifted, as a majority of voters currently oppose DOMA and support marriage equality.[4]

 

Furthermore, many legislators who supported DOMA when it was passed now oppose the law, including one of its authors, then-Republican Representative Robert Barr (I-GA). Congressman Barr, who was the Libertarian Party presidential nominee in 2008, believes that DOMA should be repealed because it “is not working out as planned . . . [and] is neither meeting the principles of federalism it was supposed to, nor is its impact limited to federal law.”[5] Moreover, he asserted, “It truly is time to get the federal government out of the marriage business. In law and policy, such decisions should be left to the people themselves. . . .  DOMA has to go. If one truly believes in federalism and the primacy of state government over the federal, DOMA is simply incompatible with those notions.[6]

 

As public and legislative support for DOMA have waned, many have called for its repeal. On March 16, 2011, Representative Jerrold Nadler (D-NY), along with Representatives Tammy Baldwin (D-WI), John Conyers (D-MI), David Cicilline (D-RI), Barney Frank (D-MA), and Jared Polis (D-CO), introduced the Respect for Marriage Act (H.R. 1116), which would eliminate DOMA. Senators Dianne Feinstein (D-CA), Kirsten Gillibrand (D-NY), and Patrick Leahy (D-VT) also unveiled a companion measure in the Senate (S. 598). H.R. 1116 boasts 108 cosponsors, only 12 cosponsors less than a similar measure gained over the course of the 111th Congress. No bill to repeal DOMA had been introduced previously in the Senate; thus, the introduction of S. 598 with 19 original cosponsors is particularly auspicious.

 

“The senators and representatives who support the Respect for Marriage Act are to be commended for introducing legislation to repeal the bigoted, unfair, and destructive Defense of Marriage Act in both houses of Congress,” comments Jen Heitel Yakush, director of public policy at the Sexuality Information and Education Council of the United States. “Hopefully, the federal government’s treatment of same-sex couples as being second class and denial of the rights that should be afforded to all Americans will soon become a chapter in the history books, albeit a shameful one.”

 

The struggle for marriage equality for lesbian, gay, bisexual, and transgender (LGBT) individuals also got a boost from the administration of President Barack Obama when Attorney General Eric Holder notified Congress that the Department of Justice (DOJ) would cease to defend Section 3 of DOMA in litigation challenging the law. Section 3 mandates that, in matters concerning the federal government, “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”[7] Given that it discriminates against one particular group of people—LGBT individuals—President Obama, who was a professor of constitutional law for over a decade, and Attorney General Holder believe that Section 3 of DOMA “merit[s] ‘heightened scrutiny,’ or much more careful review by courts” as “laws like DOMA that distinguish between people based on sexual orientation are presumptively unconstitutional.”[8]

 

This announcement represents a monumental shift in the administration’s view on DOMA. During the first two years of the Obama administration, the DOJ “took the position that the lowest level of review, called ‘rational basis’ review, applies, meaning that the discriminatory law is presumed to be constitutional and the burden of negating every conceivable justification for the law is placed on the challenger.”[9] If, however, the DOJ’s position that sexual orientation warrants heightened scrutiny is adopted by the courts, discriminatory laws would be placed “under suspicion” and a “government entity making the distinction” between different populations would be obliged to “justify the different treatment with substantial or compelling justifications.”[10]

 

Despite the current promising state of affairs, DOMA will remain law until it is overturned in the courts or repealed by Congress. Garnering Republican support for such a measure may prove difficult, as Speaker John Boehner (R-OH) announced that the House of Representatives will defend DOMA in the administration’s stead, even authorizing the appointment of outside counsel in this time of fiscal austerity. In the absence of congressional action, the fate of marriage equality will continue to lie within the judicial system.

 

 

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