The Danger of DOMA In Limbo

Jake Laperruque

This has been a year of tremendous progress for marriage equality.  For the first time in America’s history, a majority of Americans support same-sex marriage.  In June, New York – the third largest state in the country – legalized same-sex marriage.  And in February, the Justice Department announced that it would no longer defend the Defense of Marriage Act (DOMA) in court, a major blow to the 1996 law barring gay couples from receiving any federal marital benefits or protections.

However, the Justice Department’s decision in no way ends the restrictions imposed by DOMA.  While the DOJ ending its defense of DOMA – and now actually filing briefs arguing against its Constitutionality – increases the likelihood that the law will eventually be ruled unconstitutional, DOMA is not going undefended.  In March, House Speaker Boehner announced that the House of Representatives – specifically the Bipartisan Legal Advisory Group – would continue to defend DOMA in the key cases of Golinski v. OPMGill v. OPM, and Pedersen v. OPM.  Thus even if DOMA is found to be unconstitutional in lower courts, any such ruling will be stayed on appeal, which already occurred in Gill.  And while the Obama Administration has refused to defend DOMA, it continues to enforce the law.  This means DOMA’s restrictive policies will stay in place until the Supreme Court rules on these cases, which is estimated by GLAD not to occur until 2013 – at the earliest.

However, there is one way to provide federal marriage benefits and protections in a timelier manner – the Respect For Marriage Act.  This legislation – currently under consideration in the Senate with 29 co-sponsors – would end the federal government’s definition of marriage as a union between a man and woman, and allocate federal marriage benefits to all couples defined as married under their state’s laws.  Democrats would need Republican support to overcome a filibuster in the Senate and pass the legislation in the House, but this does not preclude its passage; eight Republicans supported the repeal of DADT last year, and the legalization of same-sex marriage in New York was only made possible due to the support of several Republican legislators.  This issue is not only shifting in public opinion, but also in politics.  Marriage equality will reach the point of being a civil rights issue that transcends the divide between Democrats and Republicans long before it reaches the Supreme Court.

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