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Feb 28, 2011
You’ve probably heard the exciting news that on Wednesday the Obama administration announced that Section 3 of DOMA, the Defense of Marriage Act, is unconstitutional, and the Justice Department will no longer be defending it in court. If you learned about this through a friend or overheard it on the radio or on TV, or if you read an article or two on it to try to learn some more details, don’t feel bad if some things were a little confusing. In my research for this blog, I had a lot of “But what does that mean?!” moments. I didn’t understand why someone wasn’t explaining the full story of what’s happening now in language that’s easy to understand, so I decided I would go ahead and write what I wanted to read. It took seven pages of notes to make sense of it all, but I think I have a good enough understanding now of what it all means to be able to explain (at least mostly) everything. And trust me, it’s still exciting.
First of all: What is DOMA?
DOMA is the Defense of Marriage Act, passed 15 years ago in 1996 under President Clinton.
What happened on Wednesday?
President Obama and Attorney General Eric Holder (the head of the Department of Justice) decided that Section 3 of DOMA is unconstitutional and that the Justice Department will no longer defend Section 3 in court.
From Dan Froomkin on the Huffington Post:
Wednesday’s announcement came after months of internal administration debate. The specific occasion for the reversal was the need to respond to two court challenges that were filed in a judicial jurisdiction with no established precedent for evaluating claims of discrimination against gay people.
*(I apologize for not having more information on these specific cases,- believe me I tried, but the bits and pieces I found just got tied together- but from what I can tell, they are from Connecticut and New York City)
Previously, the White House had defended DOMA simply based on applicable court precedents. In the two new cases, however, the administration would for the first time have had to state a position on a key underlying issue: whether laws regarding sexual orientation should be subject to a particularly rigorous legal standard applicable to legislation targeting minority groups with a history of discrimination.
*More on this “rigorous legal standard” later!
What does Section 3 of DOMA say?
Section 3 is the part that defines marriage on the federal level as between one man and one woman. This distinction at the federal level means that even when states choose to recognize same-sex couples as married and grant them state-level rights and protections, they are barred from the 1,138 federal-level benefits of marriage because of Section 3 of DOMA.
Does this announcement mean that legally married same-sex couples will now be granted the federal benefits of marriage?
Unfortunately, no. All this means is that when people challenge DOMA in court, the Justice Department will no longer defend DOMA as they’ve done in the past, but instead basically say, “Yes, you’re absolutely right. You are being discriminated against, it’s unfair, and we have no defense for it.”
If the Justice Department won’t argue against these cases, what happens to them?
As it turns out, just because the Department of Justice won’t be defending the constitutionality of Section 3, that doesn’t mean other non-DOJ lawyers from conservative firms aren’t jumping at the chance to. However, as John Witte, director of the Center for the Study of Law and Religion at Emory University acknowledges:
"There’s just no substitute for having the federal government’s attorney general and Office of Legal Counsel involved in these cases," he said.
"Maintaining DOMA once the administration steps away … is going to be much harder."
What did the Administration base this decision on?
It’s all about something called heightened scrutiny. I’ll include part of Attorney General Holder’s letter to House Speaker Boehner, informing him of their DOMA decision, then I’ll explain further:
As described more fully below, the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.
The Supreme Court has yet to rule on the appropriate level of scrutiny for classifications based on sexual orientation. It has, however, rendered a number of decisions that set forth the criteria that should inform this and any other judgment as to whether heightened scrutiny applies: (1) whether the group in question has suffered a history of discrimination; (2) whether individuals "exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group"; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual’s "ability to perform or contribute to society."
As you can see, there are four aspects to heightened scrutiny. To help me explain, I’ll be referencing Geoffrey Stone’s article from the Huffington Post: “DOMA is Unconstitutional.”
1) History of discrimination- Okay, this one is pretty obvious.
This is relevant both because such a history suggests that there may be prejudices at work in society that can taint the fairness of the political process, and because it is particularly unfair to heap additional burdens on groups that have been systematically discriminated against in the past.
2) Immutability- Basically the idea of: “Baby, you were born this way.” An immutable characteristic, like race or sexual orientation, is something you cannot change and something you shouldn’t be discriminated against for because you have no control over it.
3) Minority status/ability to represent yourself politically- Again, it’s obvious that the queer community is a minority. It’s true that over the past 10 years especially, the queer and allied communities have grown and strengthened to become louder and more powerful, but a group in the minority is, as Stone describes, “especially vulnerable to the pernicious effects of prejudice and intolerance.”
4) Whether the distinguishing characteristics make you legitimately different- In this case: Does being a lesbian make you so different from a heterosexual woman that we need a separate law for you?
So when you use heightened scrutiny to look at Section 3 of DOMA: there is a history of discrimination, gay people don’t choose to be gay, gay people are a minority, and there’s no characteristic of gay people that makes them worthy of discrimination- of course it’s unconstitutional.
If it’s unconstitutional, then why can’t married same-sex couples receive full federal benefits now?
Because the law can’t be changed just because the President decided it was unconstitutional. That’s not under his authority. In order for the couples to receive the 1,138 federal benefits that DOMA blocks, the Supreme Court would have to declare DOMA unconstitutional or Congress would have to repeal the law.
We’ve been talking about Section 3- What else does DOMA do?
Section 2 of DOMA says that same-sex marriages, unlike heterosexual marriages, will not be automatically recognized across state lines unless the state you enter has already legalized marriage for same-sex couples or has decided to recognize out-of-state marriages between same-sex couples.
Does Obama’s announcement have any effect on Section 2?
Not directly. It is getting people excited, though, and pushing them to act. Says Rep. Jerry Nadler, a Democrat on the House Judiciary Committee:
"The president’s move is another step in the increasing realization that there is no conceivable justification for DOMA, that it is motivated, was motivated, purely by irrational considerations and fear and that there is no rational basis that will stand up to a constitutional challenge," said Nadler. "Hopefully, that will make it somewhat easier to pass legislation in Congress."
What comes next?
Rep. Nadler is working to introduce the Respect for Marriage Act in the House, which he says already has “quite a few cosponsors.” Also, Senator Diane Feinstein of California plans to introduce a similar bill in the Senate.
"My own belief is that when two people love each other and enter the contract of marriage, the Federal government should honor that. I opposed the Defense of Marriage Act in 1996. It was the wrong law then; it is the wrong law now; and it should be repealed."
The state of California is also trying to ride the momentum of the administration’s announcement, in the hopes of moving forward once again on the rollercoaster ride that has been Proposition 8. I’ll explain more of what’s happening in California in a future post.
Hopefully that clears things up for you. I know it did for me. If you’re still foggy on some details, please let me know, and I’ll try my best to find the answers. I tried to be pretty inclusive with the information I provided here, but I also wanted to keep this specific and didn’t want to make it excessive, either.
I think it’s great that the Administration finally decided to stop defending Section 3 of DOMA, and I love that this decision has propelled others so quickly into action. We have to keep this ball rolling! I also hope that the momentum this creates will continue to push President Obama to act as a leader at the forefront of equality instead of a reluctant ally toeing the sidelines.