Is DOMA Really Dead?
As Obama decides not to defend the Defense of Marriage Act, Republicans in Congress promise action.
BY BRIAN FRAGA
| Posted 3/1/11 at 1:28 PM
WASHINGTON — Since President Obama has announced that his administration will not defend the Defense of Marriage Act in court, Republicans in the House of Representatives are stepping up to the plate.
Speaker of the House John Boehner told a reporter that it’s the administration’s responsibility to defend the law.
“But if the president won’t lead, if the president won’t defend DOMA, you’ll see the House of Representatives defend our actions in passing a bill that, frankly, passed overwhelmingly,” Boehner said.
On Monday, House Majority Leader Eric Cantor said the House will unveil a plan to defend the law by this Friday.
Obama’s decision has angered traditional marriage supporters who believe the president has granted a significant victory to the homosexual lobby.
“You have the prestige of the presidency now associated with the proposition that the definition of marriage being between a man and a woman represents discrimination. It’s very worrisome,” said Anthony Picarello Jr., general counsel for the U.S. Conference of Catholic Bishops.
Picarello said that Obama’s Feb. 23 decision that the government will not defend the 1996 law banning federal recognition of same-sex “marriages” constitutes a “serious threat to religious liberty” and opens the door to branding traditional marriage supporters as bigots.
Picarello said the onus now shifts to Congress, which could take up the defense of the federal law, which is currently being challenged in several lawsuits by same-sex “marriage” supporters.
“The next big question is: What will the House of Representatives do?” said Picarello. “That is the ball to keep your eye on.”
Austin Nimocks, senior legal counsel for the Alliance Defense Fund, a coalition of Christian attorneys, said he was disappointed to see “public officials cast aside their duties and responsibilities in favor of playing politics.”
“The executive branch of the government is supposed to defend the laws, not undermine them,” Nimocks said. “This decision clearly does the latter, and the American people are the ones who suffer as a result.”
However, Rea Carey, executive director of the National Gay and Lesbian Task Force, claimed that religious freedoms will not be compromised if the federal law is eventually revoked by Congress or ruled unconstitutional by the Supreme Court.
“It simply does not affect (religious liberties). This law is about the civil institution of marriage, not the religious blessings of relationships,” said Carey, who argued that the issue is a matter of equality.
“We feel that the government’s defense of a law that discriminates against same-sex couples who want to be married has been unfair. So what this does is end an injustice,” said Carey.
The DOMA controversy is the latest development in the 15-year-debate over same-sex “marriage.”
In 1996, a Republican-controlled Congress overwhelmingly passed the Defense of Marriage Act, which was signed into law by President Bill Clinton, a Democrat.
Lawmakers crafted DOMA three years after the issue first arose in Hawaii, when that state’s Supreme Court ruled that denying marriage licenses to three homosexual couples amounted to unconstitutional discrimination on the basis of sex, though not sexual orientation.
DOMA denies federal benefits to married people of the same sex and allows states to ignore those marriages sanctioned in other states.
But as the legal and political landscape has changed, with same-sex “marriage” now sanctioned in five states and the District of Columbia and civil unions recognized in three other states, the Defense of Marriage Act has come under increased attack.
In July 2010, a federal judge in Massachusetts ruled that DOMA was unconstitutional, saying that same-sex couples deserved the same federal benefits as heterosexual couples. That case is still in the federal appellate pipeline, as are two recent lawsuits challenging DOMA that were filed in the U.S. Court of Appeals for the Second Circuit, located in New York City.
Despite Obama’s previous public statements that he opposed DOMA, his Justice Department still argued on its behalf, including the Massachusetts challenge. However, some observers say the Obama administration only offered a tepid defense.
“Those who want to redefine marriage in this country have always had a significant advantage in having a lackluster defense presented to their lawsuits,” Nimocks said. “Now, with no defense whatsoever, their ability to redefine laws and impose their agenda has dramatically increased.”
“One good thing about this is that it clears the way for someone who actually wants to defend the law to do so,” Picarello said.
‘Landscape Has Changed’
Several organizations have filed amicus briefs in support of DOMA. Those include the USCCB, the National Organization for Marriage, the Church of Jesus Christ of Latter-Day Saints and the National Association of Evangelicals.
In a Feb. 23 press release, Attorney General Eric Holder said the president decided that Section 3 in DOMA, which defines marriage for federal purposes as only between a man and woman, failed to meet a constitutional standard protecting minority groups with a history of discrimination from unjust laws.
Holder said he fully concurred with the president and vowed that the government would not defend DOMA in the Second Circuit cases. It remains unclear whether the government will defend DOMA in the Massachusetts case.
The attorney general added that the Justice Department will remain a party to the cases and represent the country’s interests throughout the litigation.
Holder said that “much of the legal landscape has changed” since Congress passed DOMA. He noted that, in 2003, the U.S. Supreme Court ruled that laws criminalizing homosexual conduct were unconstitutional. Several lower courts have also ruled DOMA to be unconstitutional.
Scott FitzGibbon, a law professor at Boston College Law School, who stressed that he was speaking on his own behalf, said the president’s policy increases the likelihood that a federal judge will rule DOMA to be unconstitutional.
Since 2004, when the Massachusetts Supreme Judicial Court ruled that same-sex “marriage” was required under the equal protection clause of the state constitution, the issue has been the topic of lawsuits, constitutional amendments and heated legislative debates.
Thirty states currently have constitutional amendments banning same-sex “marriage.” Many of those amendments were passed during the 2004 national elections.
Meanwhile, this month, Illinois and Hawaii joined New Jersey in allowing civil unions for same-sex couples.
Massachusetts, Connecticut, Vermont, New Hampshire, Iowa and Washington, D.C., currently allow same-sex couples to marry.
In 2009, voters in Maine overturned the state Legislature’s vote earlier that year that legalized same-sex “marriage.”
California voters in 2008 approved Proposition 8, which defined marriage as between one man and one woman. The referendum overturned the state Supreme Court’s earlier ruling that banning same-sex “marriage” amounted to illegal discrimination. A federal judge subsequently found Proposition 8 to be unconstitutional, and that case remains under appeal.
Same-sex “marriage” is expected to be debated in New York, where Gov. Andrew Cuomo has said he will ask the state Legislature to take up the matter in its current session.
On Feb. 24, the day after President Obama instructed the Department of Justice to stop defending DOMA, the Maryland State Senate passed legislation to allow same-sex “marriage.” The measure is expected to be debated in the state House of Representatives.
Rhode Island, which has a Catholic population of almost 50%, is the lone state in New England that has never permitted same-sex couples to marry. A bill that would legalize same-sex “marriage” is currently being debated by the state’s General Assembly. The Diocese of Providence has lobbied aggressively on behalf of upholding traditional marriage.
Bishop Thomas Tobin, head of the Diocese of Providence, was quick to respond to Obama’s new policy on DOMA.
“President Obama’s decision to stop defending the Defense of Marriage Act is a clear
dereliction of duty and an obvious attempt to promote a politically correct agenda in our nation,” Bishop Tobin said in a prepared statement.
Providence attorney Scott Spear, a board member of the Rhode Island chapter of the National Organization for Marriage, which opposes efforts to legalize same-sex “marriage,” said the president signaled a “clear intent by the elite in power to use their political power to orchestrate an amendment to the U.S. Constitution creating a new class of rights to homosexuals and lesbians.”
Spear has given several speeches to Catholic audiences warning that religious freedom will be subjugated when same-sex couples press their rights.
“We will have a conflict between a constitutional right that doesn’t exist, but created by the court between a constitutional right that was drafted as the First Amendment,” Spear said.
Carey disagrees, saying that religious liberty will not be affected, but Picarello argues that Spear is right.
“If the definition of marriage is discrimination, then supporters of marriage are bigots,” Picarello said. “We could be subject to all manner of government punishments and sanctions.”
However, Nimocks said he believes that traditional marriage will be upheld whenever the issue reaches the U.S. Supreme Court, which most legal observers believe it will: “The Alliance Defense Fund will not waver in its ongoing defense of marriage nationwide.”
Register correspondent Brian Fraga writes from New Bedford, Massachusetts.
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