Yes, it’s 2011, but Obama’s Department of Justice is still fighting to uphold the Defense of Marriage Act, the 1996 law that defines marriage as being the legal union of a man and a woman. Yesterday, per Chris Geidner’s piece in Metro Weekly, the DOJ filed its latest defense of DOMA in the US Court of Appeals for the First Circuit after losing the first round of the fight back in July.
DOMA has very real and dire consequences for legally married same-sex couples. On its basis, the federal government denies us the 1,138 federal protections and benefits it extends to all other married couples. Consequently, a March 2009 study from UCLA found, same-sex partners are more likely to be poor than our heterosexual counterparts—in large part because of our lack of access to supposedly universal safety nets, such as a spouse's health insurance coverage and Social Security survivor benefits.
Opposing the DOJ in this fight is Gay & Lesbian Advocates & Defenders (GLAD), the Boston-based legal rights organization that made history in 2003 by winning same-sex couples the right to marry in Massachusetts. The case GLAD filed last year, Gill v. Office of Personnel Management, specifically challenges Section 3 of DOMA—the section that defines marriage as the legal union of one man and one woman for all federal purposes—on the grounds that it’s unconstitutional.
The DOJ’s case for defending DOMA, which it essentially recaps in yesterday’s filing, insists that DOMA simply "maintains the status quo" of heterosexual marriages. Not so. As Mary L. Bonauto, GLAD’s Civil Rights Project Director, pointed out to me earlier on the phone today:
"It's not enough to say, as DOMA's supporters do, that Congress was simply defining a term for federal programs. Of course Congress can define its terms. But it must comply with the equal protection guarantee in doing so. The government needs to justify why it is singling out only the marriages of same-sex couples for disrespect under federal law. If Congress defined 'person' to mean only 'Caucasian' or 'female,' we'd all see that this is different treatment that the government needs to justify."
In short, DOMA interrupted the status quo by inserting a first-ever federal definition of marriage in federal law. Prior to its passage in 1996, Congress has never ever interfered with the states when it came to how they wanted to treat marriage: who was eligible for it, how old they had to be, the couple’s racial makeup—nada. All up to the states. But 1996 rolls around, Hawaii looks like it’s dangerously close to legalizing same-sex marriage and boom, all of a sudden Congress gets very interested in defining who can get married and how and when—and insists that their definition apply to all the states regardless of the wishes of the states themselves.
DOMA’s passage in 1996 marked a moment of bona fide regime change—and for all the wrong reasons. The smart money says it cannot withstand GLAD’s challenge in 2011—for all the right ones.