DOMA - the "Defense of Marriage Act" was signed into law by President Bill Clinton in 1996 in a move that may have been as dumb as the cigar and Monica. How does stopping people from entering into the "joys" of marriage defend the act of marriage? It doesn't...
OK, so DOMA makes no logical sense, the question is how do sane people who believe in the Equal Protection clause of the Constitution overturn it?
Hillary may have just set us up to do so. Hillary just recognized gay and unmarried straight partners and gave them many of the same benefits as married straight couples.. Does this recognition violate DOMA? That is an open question, and a closer legal call than some might think. Did she do so intentionally? Who knows...
DOMA is codified at 1 U.S.C. 7:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, 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.
And 28 U.S.C. 1738:
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.
The State Department recognition of gay unions may avoid the term "marriage" and thus not held to violate DOMA at 1 U.S.C. 7. I would argue that the spirit of the law is important, namely that the people who signed the thing must have meant to stop all recognition of gay unions and thus Hillary's move does violate Bill's law, and in fact some have interpreted the law as such:
The federal government may not treat same-sex relationships as marriages for any purpose, even if concluded or recognized by one of the states.
Thus, is the giving of diplomatic passports to gay partners a recognition of a "marriage" or a "spouse." I would argue the latter is the issue as straight individuals cannot get a diplomatic passport (and the other benefits just granted by the State Department) for their partner until they are married. Thus, hasn't the State Department just recognized marriage for gays, or at least the gay "spouses" exist? DOMA is drafted to outlaw words, but words have meanings and we cannot just decide to ignore the meaning of the words. So, why do I think this is such a good thing?
I think we need a good federal case arguing the Equal Protection clause and gay marriage. We need a case like Loving v Virginia to bring equal rights for gay marriage as the banning of gay marriage is such a clear and obvious violation of the Equal Protection clause of the Constitution. Based on the above, this could be the case to do it if we can find someone with appropriate standing to bring the case.