The Defense of Marriage Act was passed in 1996 to broad bipartisan support. In the Senate, the bill passed by a margin of 85 – 14. Both of Georgia’s senators, Republican Paul Coverdell and Democrat Sam Nunn voted for passage of the bill. In the House, the vote was 342 – 67. House Democrats voted for the bill by a margin of 118 – 65. John Lewis was the only member of Georgia’s delegation to oppose the bill. The bill was signed into law by President Clinton.
The Defense of Marriage Act is a short law, especially when compared to the gargantuan health care reform law. It has only two parts. The first part says that states are not required to recognize same-sex marriage performed in other states. The second part says that, with respect to federal law, the word “spouse” only refers to a “person of the opposite sex who is a husband or wife.” In summary, this means that states would not be forced into accepting gay marriage because other states had legalized it or because a judge had misinterpreted federal law to read that “spouse” could mean a same-sex couple. Note that the law does not single out gay couples. It merely limits them to the same choices of a marriage partner that heterosexual couples have; namely, a partner of the opposite sex.
The current case stems from two rulings by Judge Joseph Tauro of the US District Court in Boston. One suit, Gill v. Office of Personnel Management, was filed by GLAD, while the other, Massachusetts v. United States Department of Health and Human Services, was filed by Massachusetts Attorney General Martha Coakley. In both cases, Judge Tauro ruled that the Defense of Marriage Act was unconstitutional. Coakley subsequently lost the Massachusetts senatorial election in 2010 to Scott Brown.
The next step was for the Supreme Court to review the cases. Normally, the Justice Department would act in defense of federal law. However, on February 23, 2010, Attorney General Holder issued a memo stating that “the President has also concluded that Section 3 of DOMA… is therefore unconstitutional.”
The problem with this line of reasoning is that the president does not have the authority to decide whether a law in unconstitutional. That is the role of the courts. The job of the executive branch, headed by the president, is to enforce the laws passed by Congress and defend them if they are challenged in court. That responsibility applies to all laws, not just the ones the president happens to agree with.
President Obama’s decision is a blatant attempt to divert attention from his mismanagement of the economy. His stimulus programs have failed to spur economic growth at the cost of trillions of dollars in debt. His health care reform is a disaster of increasing costs and regulation. President Obama added more to the federal debt in 19 months than all other US presidents from Washington to Reagan. Since he cannot stand on his record to an electorate that is increasingly angry about federal debt and spending, Obama must distract them. A social issue like gay marriage is a divisive one that has the potential to reinvigorate the Democratic base.
If the Justice Department does not defend DOMA in court, the odds are that at least section 3 the law will be struck down. Section 3 holds that federal law defines marriage as between a man and a woman. If this section is ruled unconstitutional, the immediate result will be more lawsuits. Gay couples married in gay marriage states will file suit for a myriad of things, from the right to file joint tax returns to obtaining federal benefits for same-sex spouses. If the entire law is struck down, traditional marriage states can be required to recognize same-sex marriages performed in other states.
Once gay marriage is law on the federal level, the battle would move back to the states. In all, twenty-seven states have some sort of constitutional amendment defining marriage. Several other states have laws defining marriage that are not part of the state constitution bringing the total of defense of marriage states to thirty-nine. Only seven states have laws permitting same-sex marriage. In most cases, this has been by judicial decree rather than by popular or legislative vote. Georgia’s defense of marriage amendment was passed in 2004 by a margin of 76 – 24%. This indicates that the will of the people from all across the country is that traditional marriage be maintained.
Georgia’s marriage amendment has already been challenged. It was overturned by a lower court in 2006, but eventually upheld by the Georgia Supreme Court. Even though the law is on secure footing with respect to state laws and courts, a repeal of the federal DOMA could open the way for challenges in federal court. It could become more difficult to defend Georgia’s law if full marital rights and benefits are conveyed by federal law.
Already, a federal court has overturned California’s defense of marriage amendment. If California’s law is ultimately overturned by the Supreme Court, it could have the effect of striking down all state marriage amendments as well. Governor Schwarzenegger’s justice department declined to defend California’s law in court as well, but proponents of the law may be allowed to defend it.
Currently, it seems that the tide is moving in favor of the eventual legalization of gay marriage regardless of the will of the majority of the people. Proving that elections have far reaching consequences, politicians who personally favor gay marriage are declining to fulfill their responsibility in defending the law. This makes it likely that Georgia will eventually be forced to recognize gay marriage under the full faith and credit clause of the Constitution or through a federal court ruling that strikes down all state defense of marriage amendments.
The one chance to prevent this outcome is for Georgians to vote for candidates who will support a defense of marriage amendment to the US Constitution. President Obama, Attorney General Holder and the Supreme Court might also listen if citizens contact them to voice opposition to gay marriage. Ultimately it will take more than Georgians to defeat the assault on marriage since the attack originates from outside of our state.