June 27, 2011 Articles

Obama Administration Shifts on the Defense of Marriage Act

By Nicholas P. Drury

On February 23, 2011, Attorney General Eric Holder released a statement drastically modifying the Obama administration's policy stance on the Defense of Marriage Act (DOMA), P.L. 104-199. In his statement, Holder noted that it was the administration's opinion that discrimination based on sexual orientation should be applied to a more rigorous level of scrutiny than the rational basis test. In light of the administration's stance, Holder announced that DOMA's section 3 was unconstitutional when held to a higher level of scrutiny. Accordingly, Holder indicated that the administration would no longer defend challenges to section 3.

History of the Defense of Marriage Act
DOMA was initially signed into law by President Clinton in 1996 in response to the perceived "orchestrated legal assault being waged against traditional heterosexual marriage by gay rights groups and their lawyers." Page 3, House Committee Report 104–664 [PDF]. The event that so incensed the members of the 104th Congress and compelled them to act was the handing down of a ruling by the Hawaii Supreme Court in Baehr v. Lewin, 852 P.2d 44 (Haw. 1993). This case was decided by a three-justice plurality with Chief Justice Moon joining the opinion by Justice Levinson. Levinson's opinion found that the denial of marriage licenses to same-sex applicants was discrimination on the basis of sex. Levinson went on to apply the facts of the case to the strict-scrutiny test because sex is a suspect class under the Hawaiian Constitution's Equal Protection Clause at Article I, Section 5. As a point of clarification, it is worth noting that established federal jurisprudence applies a "heightened" or "intermediate" (as opposed to strict) level of scrutiny to discrimination based on sex under the U.S. Constitution's Equal Protection Clause. Effectively, the outcome of the Hawaii case on remand would have resulted in the state being required to overcome the strict scrutiny test for discriminating against the couples seeking marriage licenses. Presumably, the state would have failed to overcome the strict scrutiny test, resulting in marriage licenses being granted to the litigants.

Following the ruling in the Baehr case, Representative Bob Barr, a Republican from Georgia, introduced DOMA before the Baehr case came up on remand in Hawaii. The purpose of DOMA was two-fold. First, Section 2 of DOMA states that "[n]o State . . . shall be required to give effect to any public act, record, or judicial proceeding of any other State . . . respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State . . . or a right or claim arising from such relationship." Because the trial court in Hawaii had not yet made a determination regarding if the Hawaiian statute on marriage passed the strict-scrutiny test, one purpose of DOMA was to preclude any same-sex couple that was granted a marriage license in Hawaii (or any state that subsequently granted same-sex marriages) from utilizing the Full Faith and Credit Clause of the U.S. Constitution to require that all other states recognize the marriage as valid. This is a powerful provision, as it allows states to completely ignore Article IV, Sec. 1 of the U.S. Constitution in matters that involve same-sex marriage.

The rationale behind this provision is evident in the House Committee Report under subheading III "Interstate Implications of Baher v. Lewin: The Full Faith and Credit Clause." The report continually takes pains to assert that Congress has no interest or business in the way that Hawaii interprets its own laws or the effect of Baher within the state of Hawaii. However, the common sentiment that binds this report together seems to be one of moral admonishment that "gay rights organizations and their lawyers" would try to make all of the states recognize a legal relationship that was properly created because to do so is morally improper and unpopular. The committee report's ultimate theme is that to force states to enforce relationships that specific states find distasteful or inconvenient is somehow an assault on the rights of heterosexual couples.

Secondly, section 3 of DOMA provides, "In determining the meaning of any Act of Congress . . . 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." The purpose is clear. The effect is to remove any relationship created between two individuals of the same sex from the ambit of federal protections. The federal government does not have any punitive restrictions that it places on the legal relationship of marriage. Therefore, the sole purpose of this section is to ensure that same-sex couples are not afforded the benefits and protections of federal acts that benefit married couples.

Policy Implications of the Administration's Decision
The attorney general's statement regarding the policy shift of the Obama administration employs broad-sweeping rhetoric regarding the proper test to apply to discrimination based on sexual orientation. Practically, however, the Obama administration has only opted to refuse to mount a defense to legal challenges regarding the constitutionality of section 3 of DOMA. Following Holder's statement, Speaker of the House John Boehner, Republican from Ohio, announced he was taking steps so that Congress could defend the legality of DOMA.

In Boehner's proposal to allow Congress to defend DOMA, he cites DOMA's broad bipartisan support when it was signed into law, although both President Clinton and Rep. Barr now oppose DOMA. The arguments that now oppose DOMA and are calling for its unqualified repeal eerily echo similar reasoning that reached opposite conclusions 15 years before. The House Committee Report tries to show proponents of same-sex marriage as a few fringe zealots who are out of touch with the larger community and even the gay community in general, and the report claims these activists are attempting to force the cultural majority of Americans to recognize this small group's cultural preference. However, current arguments against DOMA view it as a club for the cowardly in which a woefully out-of-touch, right-wing minority attempt to maintain an antiquated system of institutionalized discrimination.

If section 3 of DOMA falls to Constitutional challenges, the night may become a little brighter for same-sex marriage equality. Same-sex married couples would become eligible for the benefits, protections, and privileges of federal law. The stigma that comes from a federal act that does not define what a same-sex relationship is but only defines what it cannot be will abate if only slightly. However, the Obama Administration's proclamations that "classifications based on sexual orientation should be subject to a more heightened standard of scrutiny" seem to be meant to impress upon the public the gravity of the wrong that the administration's choice to cease defending section 3 of DOMA is supposed to right. However, section 2 of DOMA allows a solitary federal law to exclude certain relationships, based on the sexual orientation of the individuals forming the relationship, from receiving the protection of the U.S. Constitution's Full Faith and Credit Clause.

Refusing to condemn section 2 of DOMA as well as section 3 has left the administration in the position of supporting full federal protections and benefits to a legally married, same-sex couple while advocating for an individual state's right to refuse to acknowledge that any relationship exists at all. It seems that the Obama administration is endorsing the right of a state to nullify a legal relationship on the basis of sexual orientation while claiming that to discriminate based on sexual orientation is unconstitutional.

Keywords: litigation, LGBT, Defense of Marriage Act, same-sex marriage, Obama Administration

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