The United States of America, as a consciously crafted, learn-from-the-mistakes-of-others country, developed legal doctrines from its inception, as exemplified by the Declaration of Independence, the Constitution, and the Bill of Rights, what drew exclusively from the experiences of Western European cultures. Unlike the ethnically homogeneous societies from which our Founders came, the United States started with diverse ethnic and religious cultures, and deliberately sought to construct a legal and social order that recognized, accommodated, and protected that diversity.
Continuing the vision of our Founders, inspired and progressive for its time, is our legacy. To do so, however, requires constant examination of our evolving society and continued analysis of how well our laws foster respect for individuals and safeguard against governmental and majoritarian tyranny.
As humans, we sometimes have a tendency to let our ignorance, prejudice, and fear overcome our reason, objectivity, and fairness. As lawyers, we have historically had the role and responsibility-whether in state or local government, private practice, public sector work, or academia-of leading our country in preventing those baser instincts from becoming laws that dignify and justify such ignorance, prejudice, and fear. For when endowed with the status of "law," they sow the seeds of conflict and disintegration instead of strengthening and protecting our society as our laws are meant to do.
During the civil rights era of the 1960s, the federal government led the way in tearing down the laws of racial segregation and replacing them with laws of racial integration. During the struggle for equal rights for women, from the passing of the Nineteenth Amendment in 1920 to the Title IX Education Act amendments in 1972 and to the present, again the federal government crafted protective laws for women spanning the nation. Of course, in both of these areas, the federal government originally contributed to discrimination with laws codifying and perpetuating ignorance and prejudice. However, the federal government recognized its errors and led in the repeal of codified injustices. Even with these laws in place, our society continues to struggle with racial and gender equality; imagine where we would be in these struggles if we were dependent on each of the fifty states passing their own protective laws.
Yet when it comes to the legal protection and recognition of our LGBT citizens and families, the federal government not only has led the way in promoting discrimination, it also has placed legal stumbling blocks in the way of state-enacted protections. Twenty-eight states and the District of Columbia have enacted laws against hate crimes specifically including sexual orientation; eighteen states have enacted hate crimes laws that may encompass sexual orientation or gender identity. Fourteen states and the District of Columbia have enacted laws that prohibit employment discrimination based on sexual orientation. In 1996 the federal government, on the other hand, enacted legislation whose short title has become known as DOMA, or the Defense of Marriage Act. Its legislative history makes clear Congress's intent:
H.R. 3396, the Defense of Marriage Act, has two primary purposes. The first is to defend the institution of traditional heterosexual marriage. The second is to protect the right of the States to formulate their own public policy regarding the legal recognition of same-sex unions, free from any federal constitutional implications that might attend the recognition by one State of the right for homosexual couples to acquire marriage licenses. House Report No. 104-664, at 2 (1996).
The ramifications of this law are legal, financial, social, pervasive, and crippling. The valiant state of Vermont has made the most progress toward legal validation of LGBT relationships by creating civil unions, though these still fall short of marriage. Just as lawyers led the fight in striking down discriminatory laws and passing protective ones in the race and gender battles, they are much needed in the LGBT struggle today. DOMA is, in essence, codified ignorance, prejudice, and fear. We have shown in other areas of injustice that, as a country, our laws can and must evolve as we do. In 2002 Congress passed the Mychal Judge Police and Fire Chaplains Public Safety Officers' Benefit Act, which expanded the pool of beneficiaries beyond spouse or child to include nonmarried relationships. Hopefully, this is a small initial step in undoing the damage of DOMA.