On the government’s abandonment of the Defense of Marriage Act

In our world that is already moving way too fast, as though the biblical Last Days were already upon us, Alien General Holder announced this week that Alien in Chief Obama has decided that the administration will no longer defend the 1996 Defense of Marriage Act.

I’ve received many comments and news links on this, but have not written about it so far. The main reason for my delay is that the story comes from an angle that I had not anticipated or thought about. In my understanding, the Defense of Marriage Act (DOMA) declares that states are not required to recognize homosexual “marriages” that were performed in other states. All the arguments I’ve ever read about the DOMA have revolved around this issue. For example, there has been the concern on the right that the Supreme Court might overturn the DOMA, which would then mean that all states would be required to recognize any homosexual “marriages” in other states, and homosexual marriage would in effect become nationalized, even if only one state in the Union recognized homosexual marriage.

This was why, as I have argued repeatedly over the years, the only sure bulwark against homosexual marriage is a constitutional amendment declaring that marriage in the United States consists of the union of one man and one woman. Further, I support the “hard” version of the amendment proposed by the Concerned Women for America, which bans civil unions as well as same-sex marriages, because once homosexual civil unions are recognized, the inequality between civil unions and marriage will inevitably lead to the judicial dictat that same-sex couples must be included in the institution of marriage so as to assure equality between heterosexual and homosexual couples. As I have shown, conservatives, both of the neo (Steyn, Goldberg, Frum) and paleo (Thomas Fleming) varieties, who oppose the marriage amendment, have simply surrendered to homosexual marriage.

That was the issue as I’ve often discussed it. But now I learn that the government is declining to defend a part of DOMA that I did not know about had forgotten. In addition to exempting the states from the requirement to recognize same sex marriages performed in other states, the DOMA has a section declaring that that the federal government’s definition of marriage is the union of one man one woman. In effect, the U.S. government has had its own “anti-gay marriage” law since 1996.

To understand the consequences of the government’s announcement that it will not defend this aspect of DOMA, additional reading will be necessary. For the moment, here is an article which provides some useful background on the subject:

Obama, Holder Call 1996 Defense of Marriage Act Unconstitutional
February 24, 2011, 12:05 AM EST
By Joel Rosenblatt

Feb. 24 (Bloomberg)—The Obama administration said it will no longer oppose court challenges to the Defense of Marriage Act, which prohibits the federal government from recognizing same-sex marriages for purposes of taxes, social security and other programs.

U.S. Attorney General Eric Holder wrote yesterday to House Speaker John A. Boehner, an Ohio Republican, to announce the executive branch’s new position on the 15-year-old law.

While Holder’s letter explains the administration’s objection to defending the law specifically in two lawsuits in federal courts in New York and Connecticut, he also said the Justice Department will advise courts handling other challenges to the act that the administration no longer supports it.

“I will instruct department attorneys to advise courts in other pending Defense of Marriage Act litigation of the president’s and my conclusions” that the law’s definition of marriage as between a man and a woman is unconstitutional, Holder said in a statement. Members of Congress “who wish to defend the statute may pursue that option,” he said.

In October, the administration said it was appealing rulings in federal court in Massachusetts that the act was an unconstitutional violation of states’ rights. Recent lawsuits challenging the law “have caused the president and the department to conduct a new examination,” according to the letter. In his statement, Holder said the law will remain in effect until Congress repeals it or a court issues a final ruling striking it down.

The marriage-defining act, popularly known as DOMA, was signed into law by President Bill Clinton in 1996. As of 2003, it affected 1,138 federal programs in which marital status was a factor in eligibility for benefits, according to a 2004 report by the federal government.

Since the law was enacted, five states and the District of Columbia have approved gay marriage, while others allow civil unions.

Michael Steel, a spokesman for Boehner, said in an e-mail he questions why President Barack Obama “thinks now is the appropriate time to stir up a controversial issue that sharply divides the nation” when “most Americans want Washington to focus on creating jobs and cutting spending.”

Obama has long opposed the law, said Jay Carney, the White House press secretary. While the president views the law as unfair, he’s still “grappling” with his views on same-sex marriage, Carney said. Obama reviewed Holder’s recommendation on the issue “and concurred,” Carney said.

No Such Precedent

Holder said in his letter that defending the Defense of Marriage Act in the lawsuits at issue would require the Justice Department to support limiting marriage to heterosexual couples in cases where a regional federal appeals court has set no such precedent.

Citing a history of discrimination against gays and lesbians, Holder said “the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny,” and must therefore be “substantially related to an important government objective.”

Applying that standard, Holder said the legislative record underlying the law’s passage “contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships—precisely the kind of stereotype thinking the Equal Protection Clause is designed to guard against.”

Edith Schlain Windsor, the plaintiff in the New York case, married another woman, the late Clara Spyer, in Canada in 2007, according to her complaint. While New York legally recognized their marriage, and afforded them the same protections as other married couples, the two women weren’t considered married under federal law, she said.

Federal Tax Law

The case claims that under U.S. tax law, the transfer of money and property doesn’t trigger any estate tax on a spouse who is widowed. Because of the Defense of Marriage Act, Windsor was forced to pay more than $350,000 in taxes that she wouldn’t have had to pay if her marriage to Spyer had been recognized under federal law, according to the complaint.

Joanne Pedersen, who filed the Connecticut complaint, is a retired civil employee of the Department of the Navy’s Office of Naval Intelligence who married another woman in Connecticut in December 2008. Pedersen said she was denied permission to enroll her spouse, Ann Meitzen, in the Federal Employees Health Benefits Program because Meitzen didn’t qualify as a family member under DOMA.

Pedersen said that while Meitzen, who has suffered from recurrent bouts of pneumonia, wanted to work only part-time, she can’t afford to give up her full-time job’s health insurance benefits, according to the complaint.

‘Leadership, Integrity’

Gay rights groups including the National Gay and Lesbian Task Force welcomed Holder’s announcement, while initial reaction among U.S. lawmakers was along partisan lines.

New York Representative Jerrold Nadler, a Democrat, praised Obama and Holder for “their leadership, integrity and courage.”

Their decision “marks the first time that the federal government has recognized that the law designed to harm gay Americans “cannot be justified,” Nadler, who has sponsored legislation to repeal the law, said in a statement.

Lamar Smith, the Texas Republican who chairs the House Judiciary Committee, called the Justice Department’s decision to stop defending the law “irresponsible.” Smith said in a statement “this is the real politicization of the Justice Department when the personal views of the president override the government’s duty to defend the law of the land.”

The cases are Windsor v. U.S., 1:10-cv-8435, U.S. District Court, Southern District of New York, and Pedersen v. OPM, 3:10- cv-1750, U.S. District Court, District of Connecticut.

Posted by Lawrence Auster at February 25, 2011 10:40 AM | Send

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