Over the last several days we've heard excuse after excuse from Obama apologists that he had no choice but to zealously defend the constitutionality of the D[enial] of Marriage Act in federal court. If he has no choice, if he is obligated, if he is required to zealously defend the law, he ought to have no choice, he ought be obligated, he ought be required to zealously enforce the law in question.
"But isn't he doing that already?" you may ask. In short no.
In a 2004 update to its 1997 report detailing the statutory provisions where marital status is used in determining eligibility and access for federal benefits, privileges and rights, the Government Accountability Office reported that the number of laws where benefits, privileges and rights hinged (atleast in part) on marital status increased from 1049 to 1138. These laws cover a broad range of benefits most Americans really take for granted like medicaid, disability benefits for veterans, the ability to file a joint tax return, the privilege of spousal testimonial immunity, survivor benefits, ability to file wrongful death and loss of consortium suits, visitation and access to a spouse in a hospital, etc
In 1996, the D[enial] of Marriage Act amended U.S. Code adding a provision at 1 U.S.C. §7 stating
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.
Now when married couples access the rights, benefits and privileges of marriage, the government usually doesn't launch an exhaustive investigation into whether the couple is 1) married, 2) that the "husband" is a "man" and 3) that the "wife" is a "woman." When you file your federal income taxes, you don't attach certified copies of a marriage license and birth certificates along with your W-2 to your 1040. When you go and see your spouse in the hospital and tell the staff the patient you are visiting is your spouse, you aren't required to provide the documents above. Indeed most of the time they won't even ask to see identification. In processing paperwork for some marital benefit, a government official isn't likely to check long and hard as to whether the couple is married if they say they are married. A cursory check of the names is about all they do in most cases if anything at all. "John Q Public wants Benefit X for his spouse Sue. Looks good to me. Next."
The thing is, as the song says, there can be a boy named Sue. This presumption of sex and presumption of validity of an asserted marital relationship is something that isn't true for same sex couples because of 1 U.S.C. §7. But in the case of a boy named Sue or the recent case of a transitioning male-to-female transexual with an ethnic name mistaken by government officials to be female when still biologically male, some same sex couples can slip through the cracks in the system. I proposed closing those cracks...not to disadvantage the few same sex couples who can game the system (more power to them really), but rather to enlighten the vast majority of opposite sex couples who have no concept of what same sex couples have to deal with on a day-to-day basis because of the D[enial] of Marriage Act. As Abraham Lincoln once said "The best way to get a bad law repealed is to enforce it strictly."
I therefore proposed that Obama do his sworn duty and enforce 1 U.S.C. §7 in the most zealous and strictest sense possible. Wanna claim married status on your taxes? Please attach marriage certificate, birth certificates, chromosome test showing the couple to be XX and XY and signed affidavits from licensed medical personnel attesting to...um...the existence of...ahem...the right "parts" along with your $500 check or money order for your marital status and sex status background check fee. Your spouse just die and you want your Social Security survivor benefits and for your spouse's half of the house to be transfered to you tax free? Well as the lucky widow or widower you get to be squeezed out of $1000 to get both benefits. Your spouse just have a heart attack and been take to the hospital emergency room? Better bring those documents and another $500 check if you wanna see that spouse before they're dead!
Not funny? Well consider the situation for same sex couples, even ones who are married. They don't get to file joint federal taxes. They don't get Social Security survivor benefits. They don't get their spouse's half of the house tax free. And they better goddamn remember the marriage license and/or power of attorney forms if they expect to see their spouse in the hospital or want to claim the remains if their spouse dies. Its not funny at all for GLBT couples.
While their is deep public support for a repeal of Don't Ask, Don't Tell, passage of the Hate Crimes Protection Act Tourism Promotion Act, and passage of employment protection for GLBTs, a repeal of DOMA isn't widely supported nor is the public educated as to the human cost of it. One of the oft tossed around excuses against same sex marriage is that "gay couples can get the rights of marriage through contract law." That is a blatant, outright lie that is believed by many people. Same sex couples can secure very, very few rights through contracts and medical and durable powers of attorney, but when they do, it is expensive...often prohibitively expensive. If straight couples were made to see how often and how important marriage is in our society by having to pay a fee and produce documents to prove the existence of their marriage each and every time they wanted to access one of the benefits, privileges and rights of marriage all in the name of preventing any and all same sex couples from those same benefits, privileges and rights, DOMA would get repealed pretty quick.
Obama took a huge dump on the gay, lesbian, bisexual and transgendered community last week with the brief filed in defense of DOMA. People here largely ignored the incendiary language of the brief stressing the (asserted) requirement of a zealous defense of the law. Obama claims he still wants to repeal DOMA, but Congress has signaled "no way, José" on that front. If Obama really wants to fulfill his promise to repeal DOMA and be a "fierce advocate" for GLBT Americans, he's going to have to push Congress and push the American people in the right direction because they aren't going to just magically start supporting a DOMA repeal. Strictly enforcing DOMA, demanding proof of a one man, one woman legally married relationship before opposite sex couples can utilize any of those 1138 laws that hinge upon marriage would be the push to get the job done.