Obama Calls DOMA What It Is: “Unconstitutional.” What Took Him So Long?

Published on The Daily Femme – Friday, Feb. 25, 2011

Contributed by Annamarya

In a landmark move, Attorney General Eric Holder Jr. announced on Wednesday that the Obama administration will cease to defend the Clinton-era Defense of Marriage Act on the grounds that it’s unconstitutional. Holder wrote in a six-page letter to House Speaker John Boehner (R-OH) that they found Section 3 of the law, which defines marriage as “between man and woman” and bans federal recognition/legal benefits of same-sex marriage, to be in violation of the Constitution’s Equal Protection Clause. Additionally, the attorney general wrote that President Obama believes DOMA fails to meet the “rigorous standard” in which laws targeting minority groups are scrutinized. With appropriate citation, he also dismisses the long-held and argued notions that “straight” marriage should be preserved for procreation and child-rearing, and that being gay “is a choice” and  immoral. Writes Holder:

The legislative record underlying DOMA’s passage contains discussion and debate that undermines any defense under heightened scrutiny.  The record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships – precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against.

Not surprisingly, Republicans are on the attack. They criticize President Obama for weighing in on a “controversial social issue” that “divides a nation” when he should focus on job creation and the failing economy. As many writers have noted, this is the pot calling the kettle black. After all, House Republicans swore that, once in Congress, they will work to create jobs. Instead, they’ve put all their effort into diminishing women’s right to choice and reproductive health(also a polarizing issue).

On the one hand, I understand why this announcement comes now. According to The Washington Post, there is a March 11 deadline looming for two November 2010  cases challenging DOMA. Since the lawsuits (Pedersen v. OPM and Windsor v. The United States) were filed in jurisdictions sans precedent on whether sexual-orientation classifications deserved a heightened level of scrutiny or a rational basis review, the Department of Justice was required to take a firm stance. After careful reexamination–and given “the significant history of purposeful discrimination against gay and lesbian people”–the DOJ concluded that sexual orientation classifications deserve a heightened level of scrutiny than has been applied legally in past cases. This isn’t the final say, though. The district court within the Second Circuit Court of Appeals’ jurisdiction has to determine if it agrees with DOJ, and Congress has to decide if they’ll defend DOMA in spite of the administration’s position, says the Post. Also, according to Holder’s letter, the Executive Branch will still enforce and comply with Section 3 of DOMA unless it’s repealed by Congress, as per President Obama’s instructions.

At the same time, I can’t help but wonder “why now”. Why did it take 15 years for someome to admit what we already knew? Until now, said Holder, the Department of Justice was able to defend DOMA using reasonable arguments based on a “less strict standard,” reports Huffington Post. And sure, he’s right in saying that the political and legal climates have changed over the last decade (he points to the repeal of Don’t Ask, Don’t Tell, and enactment of the Matthew Shepard Act). But, as Ms. Magazine notes, Federal Judge Joseph Tauro ruled two years ago that DOMA was in violation of the 14th Amendment in the Gill v. Office of Personnel Management. So it’s not as if the act’s constitutionality hasn’t previously come into question. Could it be, then, that President Obama’s views against same-sex marriage are changing, as he said they might? Or has he finally realized what few conservatives do: that personal beliefs cannot dictate law? Is this the glimmer of hope I looked for back in October?

Despite my skepticism and curiosity, I’m elated that such a historic decision was made. More so, I’m excited that, as a result of the announcement, Rep. Jerrold Nadler (D-NY) plans on reintroducing his measure to repeal  DOMA, titled the Respect for Marriage Act, next week in Congress, reports USA Today.  The bill, which is co-sponsored by all openly gay House Democrats, was first introduced last year with 120 co-sponsors (a letter is currently circulating to gain support for the act). Unfortunately, whether this bill sees the light of day depends on the outcome of the fierce and necessary battle that will have to be waged. Although it shouldn’t. The Republican battle cry was “We Will Uphold the Constitution.” If they strike down this–and any other measure–to repeal DOMA in spite of it being declared unconstitutional, it will further show their deceit, and their utter lack of respect for human rights.

Furthermore, Congress needs to understand that this fight is not and should be about religion, which I have no doubt will find its way into the conversation. We, unlike opponents of same-sex marriage, are not citing misinterpreted Bible passages as evidence. We, unlike opponents of same-sex marriage, are notslinging harmful and bigoted slogans like “God Hates Fags” on poster-boards at Gay Pride parades. We, unlike opponents of same-sex marriage, are notbringing God into our fight.

Instead, we are simply seeking  equality for the LGBTQ community regardless of religious background. We are seeking that equality on a federal level–a level that is barred from giving religion credence when creating laws, as stated in the First Amendment of the US Constitution. So not only is DOMA unconstitutional for denying the LGBTQ community equal rights to marriage, but also because it exists on the grounds of religious opposition.

If I, a straight woman, could get married at City Hall by the Justice of the Peace and not have a God I don’t believe in at our ceremony, then why can’t my two moms? What the hell is so terrifying about that?

Letter from the Attorney General to Congress on Litigation Involving the Defense of Marriage Act

Washington Post: Obama’s historic action against DOMA

Huffington Post: Obama: DOMA Unconstitutional, DOJ Should Stop Defending In Court

Ms. Magazine: Obama Administration Will No Longer Defend DOMA

USA Today: House Democrats try to repeal anti-gay marriage law


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