The Deal with DOMA

Section 3 of the federal Defense of Marriage Act (DOMA) defines marriage, for federal law, as between one man and one woman regardless of what the states say. In other words, two males may be married according to the state of Iowa or Massachusetts or Vermont but, as far as the federal government is concerned, they’re not married.

The distinction is vitally important for things like federal income taxes and Social Security and this is the sole exception to the rule that the states determine who is married.

There are several cases working their way through the courts challenging the constitutionality of the law. It has already been declared unconstitutional in a federal court in Massachusetts.

In the latest development, Attorney General Eric Holder has sent notification to the U.S. Congress that the Obama Administration believes that any law affecting lesbians and gay men deserves “heightened scrutiny” by the courts, that section 3 of DOMA is discriminatory and the Department of Justice (DOJ) cannot, and will not, defend it in court.

Now, this has nothing to do with not enforcing DOMA as some fundies out there appear to think it does. The administration must, and will, enforce all laws. Only the courts can overturn a law and only Congress can repeal one.

What it does mean is that (1) the DOJ will not defend DOMA in the case in the 2nd circuit nor in the current California case. It has already defended it in the 1st circuit but, should the ruling that DOMA is unconstitutional be upheld there, the administration will not appeal.

Congress can decide to assign its own special counsel or a private group can petition to defend DOMA as was done for Proposition 8 in California when both the governor and attorney general refused to defend it.

Republican House Majority Leader Eric Cantor has indicated that congress will appoint a special counsel. So you see, the Republicans have no problem spending money on some things. Actually, given the rapid anti-gay marriage position of a good portion of the Republican under 80 IQ trailer park base, I don’t see how they could possibly do anything else. Still, it should be very entertaining to hear how congressmen that declare the federal government can’t regulate health care explain how it can regulate marriage.

But make no mistake, this is a BIG deal. Why? Because the courts tend to listen to the Justice Department and should the courts choose to use “heightened scrutiny” on cases involving homosexuals, defending legal differences between gays and straights becomes much more difficult as the burden of proof becomes greater.

Of course Maggie Gallagher, of the National Organization for Marriage (NOM) which is fiercely anti-gay marriage and is currently defending Prop 8 in California, is touting the DOMA announcement as the death knell for both Obama and Gay Marriage. I doubt it. The issue is still a legal one and the American electorate probably isn’t going to equate the administration announcement as having anything to do with the upcoming legal decisions.

As to her assessment that this will help win the legal case for DOMA, I don’t see it. The courts are becoming more and more hostile to homosexual discrimination as are the legislatures. It’s only the general electorate that hasn’t caught up. And they haven’t caught up primarily because of the kind of unsubstantiated swill peddled by organizations like NOM. Judges aren’t swayed by fear mongering and that’s about all the anti-gay marriage forces have left. It’s only a matter of time before the electorate realizes there must be a good reason for all those legal decisions in favor of gay marriage.

In the gay marriage fight victory is assured. The only questions are how long will it take, and what will be the cost. I look forward to seeing Gallagher and the rest of NOM boiled in their own bullshit. We’re not quite there yet, but the days of the long march appear to be over and the time for a new offensive appears to have come.