Obama and DOMA: Will the President Do the Right Thing?

Political divisions of the United States Defense of Marriage Act was always a false construct.

Enacted in the midst of the 1996 election season -- when
conservative forces were raising a ruckus about the "threat" posed by
same-sex marriage -- it was passed by Congress and signed into law by
President Clinton in 1996 in an attempt to turn the volumn down on the
issue by formally, if coherently, defining marriage as enterprise that
could only be entered into by a man and a woman.

The law was blatantly discriminatory, and as a candidate the presidency, Barack Obama described it as "abhorrent"
and "an unnecessary imposition on what had been the traditional rules
governing marriage and how states interact on the issues of marriage."

Federal law should not discriminate in any way against gay and
lesbian couples, which is precisely what DOMA does," said candidate
Obama in a statement that succinctly summed up the reasons for
overturning the law.

Now, in response to a lawsuit brought by the group Gay and Lesbian
Advocates and Defenders against the Obama administration's Office of
Personnel Management on behalf of eight married gay couples and three
surviving spouses who were denied federal spousal rights and benefits
because of DOMA, a federal judge has recognized the logic of those

The question is whether the president and his Justice Department
will operate along the lines voters presumed it would when they elected
Obama as a supporter of LGBT rights.

The unfortunate prospect is that the president will not do so.

Technically, the administration is in a process of "reviewing the
decision" and had not yet decided whether to further defend DOMA. But,
last year, when the department filed court briefs seeking to preserve
DOMA, spokeswoman Tracy Schmaler suggested that "until Congress passes
legislation repealing the law, the administration will continue to
defend the statute when it is challenged in the justice system."

So the general expectation in Washington is that, with the president's blessing, Attorney General Eric Holder's Justice Department lawyers will appeal of the ruling by Massachusetts Federal Judge Joseph Tauro,
who has ruled that DOMA "plainly encroaches" on the right of the states
to make determinations regarding marriage. As Judge Tauro explained it:
"Congress undertook this classification for the one purpose that lies
entirely outside of legislative bounds, to disadvantage a group of
which it disapproves. And such a classification the Constitution
clearly will not permit."

That's the right read of the legislative history, and of the law.
And, while Tauro's decision applies only to Massachusetts, a state that
allows same-sex marriage, its significance extends far beyond the Bay
State's borders.

Were the Justice Department to accept the Tauro's decision as
constitutionally sound and appropriate, as federal and some state
officials did when the courts began to strike down discriminatory laws
during the segregation era, this could be a breakthrough moment in the
struggle for marriage equality.

That's how Congresswoman Tammy Baldwin, D-Wisconsin, a lawyer and a member of the House Judiciary Committee who was the first open lesbian elected to Congress, interpreted it.

Said Baldwin:

I am thrilled by Judge Tauro's decision that declares part of the
Defense of Marriage Act (DOMA) unconstitutional. This is a tremendous
victory for all who believe in equal rights and a dramatic confirmation
of justice under law.

By ruling that DOMA violates the Fifth and Tenth Amendments of the
U.S. Constitution, Judge Tauro affirmed states' rights of sovereignty
and individual rights to due process. Put simply, his rulings confirm
what we already know - there is no legal basis for discrimination
against same-sex couples.

The right of same-sex couples to marry with the same protections,
benefits, and obligations as straight couples may, ultimately, be
decided by the Supreme Court. The long march to full equality is not yet over, but now is a time to rejoice in this victory.

That is the language of a civil rights campaigner, a believer in the
rule of law and an official who takes seriously her oath to defend the

It is language that President Obama and Attorney General Holder should echo.

© 2023 The Nation