Senator Feinstein and Rep. Jerrold Nadler are introducing a bill to repeal the Defense of Marriage Act. Since the Department of Justice will no longer be defending the Act in court, Speaker Boehner will formally ask Congressional lawyers to defend it. The less costly and more practical solution would likely be for both houses to go ahead and repeal it, but in our political climate I don't see that happening.
Logically, though, the Defense of Marriage Act just doesn't make sense under the existing legal, legislative and moral landscape in this country. In Romer v. Evans, the Supreme Court overturned a sweeping antigay amendment in Colorado, banning antidiscrimination protections for gays, largely based on the idea that "a bare desire to harm" a politically unpopular group (i.e., gays) does not even qualify as a rational basis for a law. DOMA was enacted the same year as this decision, incidentally.
I've perused the Congressional record and several statements on the rationale for the Defense of Marriage Act and a lot of these comments are revealing.
First, I'll start with President Clinton's statement upon signing the bill:
Throughout my life I have strenuously opposed discrimination of any kind, including discrimination against gay and lesbian Americans. I am signing into law H.R. 3396, a bill relating to same-gender marriage, but it is important to note what this legislation does and does not do.
I have long opposed governmental recognition of same-gender marriages and this legislation is consistent with that position. The Act confirms the right of each state to determine its own policy with respect to same gender marriage and clarifies for purposes of federal law the operative meaning of the terms "marriage" and "spouse".
This legislation does not reach beyond those two provisions. It has no effect on any current federal, state or local anti-discrimination law and does not constrain the right of Congress or any state or locality to enact anti-discrimination laws. I therefore would take this opportunity to urge Congress to pass the Employment Non-Discrimination Act, an act which would extend employment discrimination protections to gays and lesbians in the workplace. This year the Senate considered this legislation contemporaneously with the Act I sign today and failed to pass it by a single vote. I hope that in its next Session Congress will pass it expeditiously.
I also want to make clear to all that the enactment of this legislation should not, despite the fierce and at times divisive rhetoric surrounding it, be understood to provide an excuse for discrimination, violence or intimidation against any person on the basis of sexual orientation. Discrimination, violence and intimidation for that reason, as well as others, violate the principle of equal protection under the law and have no place in American society.
It appears that the very reason he signed the law was based on personal opposition to marriage for gay couples, and his belief that the federal government should endorse opposite-sex marriage as the only legal kind of union. The law doesn't regulate what states decide to classify as a marriage, it only tells states and their citizens that the federal government will not call their same sex marriages what they are - legitimate marriages.
When the president of the United States signs a law based on his personal distaste for gay people, and a law that is not even designed to stop gay marriages, only to express a bigoted position of the federal government - and one that is now opposed by at least five states and Washington DC - and to deny federal benefits to American citizens based on their homosexuality, it becomes increasingly difficult to find a defense for the law.
Remember that the Obama DOJ stopped using the Congressional Record in court proceedings in the law's defense:
“While the government has rightly abandoned the reasons Congress relied on in passing DOMA in 1996, it now seeks to dismiss our case by arguing that DOMA “maintains the status quo,”” says Mary L. Bonauto, GLAD Civil Rights Project Director. “The reality is that DOMA itself radically changed the status quo by which the federal government recognized and accepted state determinations of who is married. There is no valid excuse for the federal discrimination imposed by DOMA and this can be resolved now and without a trial."
This is because not only is the Congressional Record on this law completely offensive, but it describes in stark detail why the law is unconstitutional. First, they say outright that Congress just opposes the idea of same-sex marriage and thus the goal of DOMA is to codify opposition same sex marriage (in lieu of some valid, rational argument):
Of course, the foregoing discussion would hardly support--much less necessitate--congressional action if the Committee were supportive of (or even indifferent to) the notion of same-sex `marriage.' But the Committee does not believe that passivity is an appropriate or responsible reaction to the orchestrated legal campaign by homosexual groups to redefine the institution of marriage through the judicial process. H.R. 3396 is a modest effort to combat that strategy.
Get it? If Congress were indifferent to same-sex marriage, the discussion of the proposed law wouldn't need to happen. They were just worried about an "orchestrated" campaign by "homosexual groups to redefine... marriage." Right off, they admit that they passed this law because they're not just indifferent, they're actively opposed to homosexuality.
I don't see how that's permissible. It doesn't seem right even in 1996, but especially not now with states dropping their government restrictions on gays' marriage rights.
In fact, Congress went further than that, and said that DOMA was meant to promote heterosexuality:
[Footnote 53: Closely related to this interest in protecting traditional marriage is a corresponding interest in promoting heterosexuality. While there is controversy concerning how sexual `orientation' is determined, `there is good reason to think that a very substantial number of people are born with the potential to live either gay or straight lives.' E.L. Pattullo, `Straight Talk About Gays,' Commentary 21 (December 1992). `[R]eason suggest[s] that we guard against doing anything which might mislead wavering children into perceiving society as indifferent to the sexual orientation they develop.' Id. at 22; see also Bennett, The Washington Post A19 (May 21, 1996) (`Societal indifference about heterosexuality and homosexuality would cause a lot of confusion.'); Deneen L. Brown, `Teens Ponder: Gay, Bi, Straight? Social Climate Fosters Openness, Experimentation,' The Washington Post A1 (July 15, 1993) (recounting interviews with dozens of teenagers, school counselors, and parents regarding increased `sexual identity confusion' apparently reflecting increasing social acceptance of homosexuality). Maintaining a preferred societal status of heterosexual marriage thus will also serve to encourage heterosexuality, for as Dr. Pattullo notes, `to the extent that society has an interest both in reproducing itself and in strengthening the institution of the family . . . there is warrant for resisting the movement to abolish all societal distinctions between homosexual and heterosexual.' Pattullo, Commentary at 23.]
They enacted DOMA specifically to confer a higher status on heterosexual people, so that more children would grow up to realize they should be heterosexual. This has of course led to higher incidents of suicide and depression among gay people, and outright rejection in some cases even by a gay person's friends or family, all to reach the ends of "promoting heterosexuality."
This is one of the biggest reasons it's time to repeal DOMA: sexual orientation is understood as a real distinction by law and by psychologists. Back when, for example, the military's gay ban was implemented, the idea was to stop a perceived aberrant sexual behavior. Society and science's views on homosexuality have changed - it's no longer a behavior but an orientation. It can't be changed and so-called "conversion therapy" has been rejected by scientists and psychologists. It made no sense to keep the gay ban going.
And it makes no sense to keep DOMA. Simply put, the goal of promoting heterosexuality is not served by laws like DADT or DOMA. The government can't promote heterosexuality even if it wanted to. At this point, it's only creating a second-class status for a group of people it can't change.
This view that the government can't intrude on the freedoms of Americans in order to make them second-class citizens is becoming accepted even in the conservative Supreme Court. When they overruled bans on sodomy in Lawrence v. Texas, the Court said:
The Court began its substantive discussion in Bowers as follows: “The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time.” Id., at 190. That statement, we now conclude, discloses the Court’s own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.
This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.
The sodomy bans didn't just try to prevent so-called "deviant" sexual acts, they actually infringed on a person's liberty to make their own decisions and to be in the relationships they choose for themselves. This was because there are gay people, not straight people who engage in deviant behavior. Gays are a class.
Last year, the Supreme Court said as much:
Our decisions have declined to distinguish between status and conduct in this context.
Obviously it doesn't make any sense to try to promote one class over another class.
Congress also decided that if gays can marry it will "demean" marriage:
[Footnote] and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality. As Representative Henry Hyde, the Chairman of the Judiciary Committee, stated during the Subcommittee markup of H.R. 3396: `[S]ame-sex marriage, if sanctified by the law, if approved by the law, legitimates a public union, a legal status that most people . . . feel ought to be illegitimate. . . . And in so doing it trivializes the legitimate status of marriage and demeans it by putting a stamp of approval . . . on a union that many people . . . think is immoral.' 55
In the campaign for Amendment 2, the Colorado law struck down in Romer v. Evans, anti-gay activists said their reasons for the amendment were:
...among other things: “Sexual molestation of children is a large part of many homosexuals’ lifestyle—part of the very lifestyle ‘gay-rights’ activists want government to give special class, ethnic status!”24 Other campaign materials distributed by supporters of the amendment erroneously charged that “homosexuals commit between 1/3 and 1/2 of all recorded child molestations.”25 (Contrary to these charges, several studies have concluded that the overwhelming majority of child molestations are not committed by gays.)26 An increase in anti-gay hate crimes in Colorado accompanied the campaign to pass the amendment.
In DOMA's Congressional Record, a similar attack was used - they even mentioned ominously the idea of gay people adopting kids:
Upholding traditional morality, encouraging procreation in the context of families, encouraging heterosexuality--these and other important legitimate governmental purposes would be undermined by forcing another State to recognize same-sex unions. Second, in a more pragmatic sense, homosexual couples would presumably become eligible to receive a range of government marital benefits. For example, in Baehr v. Lewin, the court listed fourteen specific `rights and benefits' that are available only to married couples. 852 P.2d at 59 (listing benefits relating to income tax; public assistance; community property; dower, courtesy, and inheritance; probate; child custody and support payments; spousal support; premarital agreements; name changes; nonsupport actions; post-divorce rights; evidentiary privileges; and others). The Committee would add that recognizing same-sex `marriages' would almost certainly have implications on the ability of homosexuals to adopt children as well.
We're in a country where it has been standard practice to accuse gay people of trying to "convert" children or "recruit" them, and to say that we're child molesters and that children need to be "saved" from us. For Congress to imply in its record that gay adoption would be bad (even if they were subtle about it) is amazingly absurd.
It would be easiest for Congress to just repeal it, instead of considering defending it in court. Anyone who supports the law supports the suggestion that heterosexuals are just plain better than gays and that federal law should reflect that.