Amid the despair, there are still victories to be had. One of them from the desk of President Obama, a little headline that will immediately catch your notice: “PFAW Commends President Obama’s Stand Against Unconstitutional Defense of Marriage Act.”
Yes, it’s true. On Wednesday February 23, 2011, President Obama “ordered the Department of Justice to stop defending the Defense of Marriage Act in courts, because the discriminatory statute is unconstitutional.”
The Defense of Marriage Act, otherwise known by its shorthand name as DOMA, was enacted by the 104th Congress in 1996 as Public Law No. 104-199, 110 St. 2419. It decreed (Section 3) that “the word `marriage’ means only a legal union between one man and one woman as husband and wife, and the word `spouse’ refers only to a person of the opposite sex who is a husband or a wife.” It also meant (Section 2),
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
Last but not least, it denies federal benefits to married same-sex couples.
The ACLU filed a case against DOMA in November 2010. For two years now President Obama has said that while he opposes the act he has no choice as President but to uphold it. Michael Keegan, President of People For the American Way, issued the following statement:
“In the 15 years since DOMA was made law, it has hurt untold numbers of gay and lesbian Americans, depriving them of the rights to enjoy the full benefits of marriage and forcing them to live as second class citizens. The President has chosen to defend the Constitution of the United States over a discriminatory and clearly unconstitutional law. That decision should be commended. A discriminatory law like DOMA has no place in a country grounded in the values of freedom and equality.”
At a press briefing Press Secretary Jay Carney explained the president’s position:
Q Thanks, Jay. Could you walk us through how the President’s position on the Defense of Marriage Act has evolved and how he made his decision to order the Justice Department to no longer defend its constitutionality?
MR. CARNEY: Yes. The President’s position on the Defense of Marriage Act has been consistent. He has long opposed it as unnecessary and unfair. Separate from that, or distinct from that is the decision that was announced today which was brought on by a court-imposed deadline, by the Second Circuit, that required a decision by the administration about whether or not this case should require heightened scrutiny, a heightened constitutional review — because this — unlike the other cases in other circuits, there was no precedent, no foundation upon which the administration could defend the Defense of Marriage Act, in this case. Therefore it had to basically make a positive assertion about its constitutionality.
Carney was careful to point out that there is a “distinction between his personal views, which he has discussed, and the legal issue.”
Unfortunately, DOMA is still law. President Obama is not President Bush; he did not simply make a signing statement saying that the law was irrelevant. As Carney pointed out,
It is also important to note that the enforcement of the Defense of Marriage Act continues — the President is constitutionally bound to enforce the laws and enforcement of the DOMA will continue.
Unfortunately, as Human Rights Campaign points out, “anti-LGBT leaders in Congress may have a chance to defend the law themselves…”. So DOMA is still with us and barring further change it will remain so, but the President has in this situation finally gotten down off his fence and put his money where his mouth is, and he is to be applauded for that.