by Peter Sprigg
March 4, 2011
The federal Defense of Marriage Act (DOMA) was enacted in 1996 by large bipartisan majorities in both houses of Congress and signed into law by President Bill Clinton. It ensured that states would not have to recognize same-sex marriages from other states, and that the federal government would recognize only the union of one man and one woman as marriage.
Yet now, DOMA is under the sharpest attack in its historydespite the fact that four federal courts have already upheld its constitutionality, and no federal or state appellate court has ever said that it violates the U.S. Constitution. In July 2010, however, a single federal District Court Judge in Boston, Joseph L. Tauro, ruled in a pair of cases that the federal definition of marriage in DOMA is unconstitutional. In November 2010, two more federal court challenges to DOMA were filed in New York and Connecticut. In total, there are no less than ten currently pending federal court cases which involve some form of challenge to DOMA. Here are some key questions and answers about the current status of this law:
Q: What did Attorney General Eric Holder announce on February 23 about the administrations position regarding the federal Defense of Marriage Act (DOMA)
A: In a press release and in a letter to Congress, Mr. Holder said that he and President Obama have concluded that one of the provisions of the Defense of Marriage Actthe one which limits the federal government to recognizing only marriages between one man and one womanis unconstitutional. This marked a sharp reversal, since the Department of Justice has submitted several briefs defending the constitutionality of DOMA in previous court cases.
This decision represents a shocking abdication of the Attorney Generals, and the Presidents, constitutional responsibility to take care that the laws be faithfully executed, and sets a dangerous precedent for future executive refusals to defend existing law.
Q: What motivated this change of position?
A: Politics likely played a major role, as the Obama Administration has been under intense pressure from pro-homosexual activists to stop defending DOMA. There is also evidence which suggests collusion between the Justice Department and attorneys who are challenging DOMA and the definition of marriage in court. Attorneys in the case of Perry v. Schwarzenegger, who seek to overturn Californias marriage amendment (Proposition 8) and establish a federal constitutional right to same-sex marriage, filed a Motion to Vacate Stay with the Ninth Circuit, containing detailed citations from the Attorney Generals letter, just hours after the letter was released.
Family Research Council has filed a Freedom of Information Act (FOIA) request for any communications between the DOJ and litigants and attorneys in this case or in the cases challenging DOMA in other courts.
Q: Hasnt President Obama opposed DOMA all along?
A: Yes, Mr. Obama favors the repeal of DOMA. However, it is possible to believe that a law represents bad public policy, while at the same time believing that it does not violate the Constitution. This had been the position of the Obama administration until February 23, 2011.
QHow can the Administration justify such an about-face?
A: Earlier cases challenging the constitutionality of DOMA (such as the Massachusetts cases decided by Judge Tauro) had been filed in federal court circuits in which there was controlling precedent saying that classifications based on sexual orientation are subject only to a rational basis testthe most lenient level of scrutiny, under which legislative choices are accorded the greatest deference. The DOJs briefs had argued that DOMA was constitutional by this standard.
The new lawsuits challenging DOMA in New York and Connecticut, however, were filed in federal courts located in a circuit (the Second) without any such precedent. Mr. Holder claims that this caused the DOJ to re-examine the question of the appropriate standard of inquiry, and that in turn led him to declare that classifications based on sexual orientation warrant heightened scrutiny.
Q: What does heightened scrutiny mean?
A: When a law creates a classification that treats some individuals or groups differently from others (in this case, treating opposite-sex couples differently from same-sex couples), it may sometimes be challenged as violating the Constitutions guarantee of the equal protection of the law. However, most laws are judged under a rational basis test, meaning that a legislative enactment will be upheld as long as there is any conceivable rational basis for the classification.
However, heightened scrutiny usually applies to classifications based on characteristics considered immutable and irrelevant to legitimate policy objectives, possessed by groups who are minorities or politically powerless and have been subject to a history of discrimination. The classic examples are race and sex. The Supreme Court has never said that this standard applies to sexual orientation. It would increase the chances of a court striking down laws which limit marriage or its benefits to the union of one man and one woman, such as DOMA.
Q: How did the Attorney General justify this call for heightened scrutiny.
A: Mr. Holder asserted that a growing scientific consensus accepts that sexual orientation is a characteristic that is immutable. However, he cited only one source in support of this contentionone dated 1992. In a footnote, he further claims that discrimination has been based on the incorrect belief that sexual orientation is a behavioral characteristic that can be changed.
In fact the theory that there is a gay gene or that people are born gay has been largely discredited by science since the early 1990s. Studies of identical twins, such as one in the American Journal of Sociology in 2002, support the hypothesis that less gendered socialization in early childhood and preadolescence shapes subsequent homosexuality. And evidence that homosexuals can change has come even from Dr. Robert Spitzer, the psychiatrist who led the effort to remove homosexuality from the official list of mental disorders. In a 2003 study, Spitzer found that changes [in sexual orientation] … were not limited to sexual behavior and … self-identity. The changes encompassed sexual attraction … the core aspects of sexual orientation.
Q: Who can defend DOMA if the Justice Department refuses to?
A: The courts have long recognized Congresss vital interest in defending the constitutionality of its Acts in the rare circumstances that the Justice Department refuses to provide such a defense. This happens as recently as 1983 in INS v. Chadha. The Supreme Court made clear in the 1997 case Raines v. Byrd that individual members cannot assert these interests, as Congress can only act through resolutions passed by the majority. Either chamber may do so individually.
Q: What would it mean if DOMA were struck down by the courts?
A: The immediate result would be federal government recognition of same-sex marriages that are already legal in the state where they occurred. However, if the federal definition of marriage as the union of one man and one woman is found unconstitutional, it would be only a matter of time before the same definition at the state level would be struck downincluding in the 29 states that have put that definition in their own constitutions. This is exactly the remedy sought by the plaintiffs in Perry (the Proposition 8 case), which is now before the Ninth Circuit.
Q: What should be done now?
A: Congress must continue to defend DOMA in court, since the Justice Department refuses to do so. Bills to legalize same-sex marriage must be defeated in state legislatures, and additional state marriage amendments must be adopted defining marriage as the union of a man and a woman. These make it hard for any court to find that there is an emerging consensus in favor of same-sex marriage. Finally, pro-family groups actively involved in the defense of marriage in court, such as the Alliance Defense Fund, and others involved in filing and coordinating amicus briefs, such as Family Research Council, need financial support for these efforts.
It is quite possible that the issue of same-sex marriage will reach the U. S. Supreme Court in 2012 or 2013. Pro-family citizens and office-holders must speak now, or forever hold your peace.