Defense of Marriage Act (DOMA) as a federal law that defines marriage as a union between one man and one woman; its existence prevents same-sex couples from being legally recognized as married by the federal government and enjoying more than 1,138 federal rights. The Supreme Court now has the opportunity to rectify this injustice by repealing the law responsible for it.
“I think same-sex couples should be able to get married,” said President Barack Obama in May 2012. He was among the first major political figures to oppose DOMA; he told the Department of Justice to stop defending it in February of 2011.
And after falling under increasing scrutiny, it has been deemed discriminatory by former President Bill Clinton, who recently told the Human Rights Campaign that, “LGBT Americans are our colleagues, our teachers, our soldiers, our friends, our loved ones. They are full and equal citizens and deserve the rights of citizenship. That includes marriage.”
It is extremely rare for former Presidents to admit mistakes made in office, and rarer still to disavow a major piece of legislation days before its constitutionality is going before the Supreme Court. Though this assertion was not technically a full apology to the LGBT community, it has served to provide it with further support in its endeavor to have DOMA repealed. In the last week, former Secretary of State Hillary Rodham Clinton has joined her husband and President Obama in their effort to have the legislation repealed.
Clinton, an opponent of same-sex marriage but a proponent of other gay rights throughout his administration, ultimately had to choose between the two. On September 21, 1996 he signed DOMA into law; a discriminatory bill that at the time, it appeared to be a compromise between two conflicting ideologies.
Had gay equality been an unwavering element of his platform, he might have compromised his chances at reelection. Though such a concept is no longer considered radical, the notion was too progressive at the time, when less than 30 percent of Americans supported gay marriage, and would have been too risky for his campaign. More than 17 years later, the repercussions of this decision are still resonating nationwide.
Many expect that DOMA will be repealed once the Supreme Court finally makes a decision. If the Supreme Court asserts that the law is unconstitutional, then it will be up to individual states to determine how they will define marriage in their jurisdiction. Though this generates an opportunity for states to grant gay couples equal rights as they pertain to marriage under the law, it also means that some states will still be able to perpetuate this codified discrimination, if they choose to do so.
Currently, the Supreme Court Justices are split on the matter: the four more liberal justices — Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan — aim to strike down the law, and Antonin Scalia, Clarence Thomas, John G. Roberts and Samuel Alito will vote to uphold the legislation.
Justice Anthony Kennedy will likely be the swing vote. He generally values two things in particular: gay rights and states’ rights. He wrote the Supreme Court decision in Romer v. Evansthat invalidated a Colorado constitutional provision prohibiting LGBT individuals from filing discrimination claims, as well as wrote the Court’s opinion in the landmark case Lawrence v. Texas, which overturned laws criminalizing homosexual sodomy.
“The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle, Kennedy wrote in his opinion. “The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.”
So although Kennedy will likely support the repeal of DOMA, he will still be reluctant to state that it is unconstitutional for states to ban gay marriage altogether. At this point, this extra measure would be too progressive for Kennedy to support; he may feel that prohibiting statewide gay marriage bans is overstepping the court’s judicial reach, and impeding on states’ rights.
Two particular cases in Arizona and Hawaii will hopefully reach the Supreme Court in the next two or three years, which would question the constitutionality of Prop 8 specifically. This would pave the way for the Supreme Court Justices to finally state that it is illegal to ban gay marriage in any state.
The cases to keep an eye on include Jackson v. Abercrombie in Hawaii, where a U.S. District Court judge did not rule in favor of two lesbians who felt that Hawaii’s 1998 ban on same-sex marriage is unconstitutional, and Diaz v. Brewer in Arizona, that has questioned the legality of the state denying employee healthcare benefits to their same-sex domestic partners. Kennedy will again write the court opinion on these cases, and will use the pending decision on DOMA’s constitutionality as a guideline.
“I 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,” President Clinton originally said about DOMA. Recently, after reflecting upon those words, he added, “I know now that, even worse than providing an excuse for discrimination, the law is itself discriminatory. It should be overturned.”
The repeal of DOMA would strengthen the American family by expanding the federal protections of marriage to all married loving, committed couples and their families, allowing them to take better care of each other and their children both fiscally, legally and otherwise. Stronger families lead to stronger communities. Recognizing gay and straight couples’ relationships and marriages equally in the eyes of the law will help to foster an environment that puts equality over bigotry, and love over political agendas.