Published by
It's A Free Blog

Defense of Marriage Act is Still Good Law...Until It's Not

Email a Friend
Jami Floyd

Let's all stop and take a deep breath to reconsider the news of this week.

The Obama administration announced it would no longer defend the Defense of Marriage Act (DOMA).

That 15 year-old law defines marriage as a legal union between one man and one woman for purposes of all federal laws, and provides that states need not recognize a marriage from another state if it is between persons of the same sex.

So what does it really mean when the Justice Department says it will no longer defend this federal law? A lot. But not much.

For two years, to the dismay of gay rights advocates, the administration had defended the law in court, despite President Obama's express concerns about its constitutionality. But then along came two new court cases challenging the law. Unlike earlier cases, these latest cases had no precedent to rely upon in a defense, and thus forced President Obama and his Department of Justice to grapple with the intersection of law and public policy.

One of them, a New York case, involves a woman who was required to pay an additional $350,000 in estate taxes because her deceased partner was not recognized as her spouse under federal law. The other, a Connecticut case, involves a woman who was not allowed to enroll her same-sex partner in a health benefits program for federal employees.   

At the intersection of law and public policy, the administration found unconstitutionality. 

It was the right finding. Traditionalists like to trot out the Constitution in defense of marriage. How quickly they forget, if they ever understood, that the Constitution was drafted to protect the rights of minorities against the tyranny (and the moral judgments) of the majority.   

Legally, however, this is not the end of the story. In many ways, it is only the beginning. The opinion of DOJ, is one thing. There is still a long way to go before the constitutionality of DOMA is settled as a matter of law. Ergo, the need for a deep breath and reconsideration.

While the Justice Department will no longer defend the act, it still remains on the books, subject to constitutional challenge and, more than likely, destined for the U.S. Supreme Court.  

The issue at hand is very limited: whether same sex-couples, in the states that already legally recognize gay marriage, can be discriminated against by the federal government or other states.  

Thirty-seven states have their own Defense of Marriage laws. Two more states have strong language that defines marriage as one man and one woman. There are thirty states that have constitutional amendments protecting traditional marriage, including the three states (Arizona, California, and Florida) that passed constitutional amendments in November 2008.  

The decision by the Obama administration to stop defending DOMA will have no immediate impact on the status of same-sex marriage in states where it is illegal. Where voters enacted a constitutional ban, short of voter repeal, the only way those bans can be overturned is by a US Supreme Court ruling that they violate the Constitution.

That may — or may not — be where we are headed.

Jami Floyd is an attorney, broadcast journalist and legal analyst for cable and network news, and is a frequent contributor to WNYC Radio. She is former advisor in the Clinton administration and served as a surrogate for the Obama campaign on legal and domestic policy issues. You can follow her on twitter.