The Obama administration has taken another progressive step toward equality that has LGBT-rights advocates feeling victorious. On Feb. 23, President Obama declared Section 3 of DOMA (Defense of Marriage Act) unconstitutional, and stated the Department of Justice would no longer defend the statute in federal court in jurisdictions that have no precedent in defending the act.
In a letter addressed to Speaker of the House John A. Boehner, Attorney General Eric H. Holder Jr. states that Section 3 of DOMA “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 [Constitution’s] Equal Protection Clause is designed to guard against.”
DOMA is being challenged in the Second Circuit Court of Appeals in the cases of Windsor v. United States in New York, Pedersen v. Office of Personnel Management in Connecticut and the earlier case of Gill v. Office of Personnel Management in Massachusetts. All cases address the federal government’s “denial of marriage-related protections in the areas of federal Family Medical Leave Act benefits, federal laws for private pension plans, federal laws concerning state pension plans.” In a letter addressed to the LGBT community during his election campaign, Obama wrote, “I support the complete repeal of the Defense of Marriage Act (DOMA) … Federal law should not discriminate in any way against gay and lesbian couples, which is precisely what DOMA does.”
Holder in his letter denounces the act as unconstitutional, even comparing it to the fight for women’s rights. Specifically, DOMA Section 3 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.”
Holder wrote that DOMA is a purposeful act of discrimination, holding that homosexuality is an “immutable characteristic” that in no way affects someone’s ability to contribute positively to society.
Holder and Obama focus on the need for a heightened standard of scrutiny when reviewing “classifications based on sexual orientation” and argue the act clearly violates the Equal Protection Clause of the 14th Amendment, which reads, “No State shall deny to any person within its jurisdiction the equal protection of the laws.”
The attorney general’s letter addresses fundamental problems with DOMA but doesn’t outline a plan to repeal or alter it. The language of the letter is based upon stating facts rather than outlining a solution. Much more must be done to create a sense of security in the LGBT community that same-sex marriages will be offered federal protection and enjoy the same benefits as heterosexual couples.
So, although the challenge itself is something to celebrate, DOMA is not dead yet. Holder’s letter makes it clear that the Obama administration in its executive capacity must enforce DOMA as long as it exists, and recognizes that the judiciary will be the final arbiter of the law. Obama can state his feelings about DOMA, but the administration has to continue to abide by the statute unless (or until) the judiciary itself makes the final determination.
Angela Giampolo, principal of Giampolo Law Group, maintains offices in both Pennsylvania and New Jersey and specializes in LGBT, business, real-estate and civil-rights law. Her website is www.giampololaw.com and her blog appears at www.phillygaylawyer.com. Send legal questions to [email protected].