| Today's big new news is that the Obama Administration has concluded that Section 3 of the Defense of Marriage Act is unconstitutional and will no longer defend it in court. I found it valuable to read the new Justice Department statement on DOMA and a Wikipedia overview of DOMA.
As if you know if you read the national progressive blogs, the Obama Justice Department has defended DOMA in federal courts over the last two years, sometimes making incredibly awful statements cut-and-pasted from Bush arguments, despite candidate Obama's statements that he thought it should be repealed. The official statement gives a long lawyerly reason why they now in the "Second Circuit" are suddenly free to instead follow the President's new instructions:
After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases.
To remind you, Section 3 is the part that declares that the Federal Government will not recognize same-sex marriages (or civil unions.) If the courts toss out this section, Obama would be free to recognize state civil unions and marriages: I'm no lawyer but this could affect discrimination laws, Social Security, health benefits, taxes, etc., etc. This would make an enormous positive difference to our New Jersey same-sex couples... if Section 3 is ruled unconstitutional by the Supreme Court. There will never be Marriage Equality without Federal government recognition.
What about Section 2? That's the part that allows states not recognize same-sex marriages from other jurisdictions. I understand New Jersey does recognize such marriages -- albeit within the New Jersey system of civil unions -- but of course if you're moving from here to most other states you'd still be lost. Even if Section 2 were thrown out, it'd be an uncertain path to get your marriage recognized in (say) Nevada even though my Vegas wedding never creates any problems for me outside of Elvis jokes.
I'd also like to say that whatever lawyerly justifications were used, I think this new stance is a side effect of losing the House. When Democrats controlled Congress it was very awkward to argue in favor of a policy that fellow Democrats in Congress were running away from, if not actively opposing. [Update: My lawyer friends tell me that in fact their legal reasoning is quite sound, and the other circuit panels with binding precedents could not have used this argument.]
Those of you who are more knowledgeable should correct me in comments, or better yet write additional posts. |
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