What’s At Stake in the Attack on DOMA?

Bill-Duncanby William C. Duncan, Marriage Law Foundation

Those who are pushing a redefinition of marriage in the United States promote an ideology that says when it comes to marriage, all adult relationships are the same and that adult desires are more important than children’s needs. A corollary to this idea is that anyone who disagrees is a bigot. When you see the world in this way, you are likely to believe that anything that advances your goal is permissible no matter how radical. The current legal attack on the Federal Defense of Marriage Act (DOMA) is a good illustration.

DOMA Background

DOMA was overwhelmingly approved by Congress (and signed by President Bill Clinton) in 1996. At that time, at the order of the Hawaii Supreme Court, a trial court in Honolulu was deciding whether that state’s marriage law was constitutional. A decision to redefine marriage there, many activists were claiming, would mean that every state would have to recognize same-sex marriages contracted there.

Thus, the need for DOMA. This legislation has two parts. The first makes clear that whenever federal law mentions marriage it means the union of a man and a woman. The second makes clear that no state will be forced to recognize a same-sex marriage contracted in another state.

Lawsuit Attacks on DOMA

It is this first part that is being attacked in two separate lawsuits, both arising from Massachusetts-the first state to have legally redefined marriage, by court order.

The first lawsuit was brought by the group behind the lawsuit that resulted in same-sex marriage in Massachusetts; Gay and Lesbian Advocates and Defenders (GLAD). This new lawsuit argues that DOMA is unconstitutional because same-sex couples legally married in Massachusetts cannot get marriage benefits (like Social Security death benefits, or government employment compensation) under federal law.

The second lawsuit is brought by the state of Massachusetts itself. The state, it seems, is perturbed that it cannot unilaterally change federal law to adapt to Massachusetts’s new definition of marriage. This suit argues that it is unconstitutional for the government to define marriage in a way different than the state of Massachusetts. The state says it is harmed because when it administers federal laws like Medicare (and, of course, federal tax money) it has to do it in a way it believes is “discriminatory.”

DOMA and the Administration

The current presidential Administration has announced that it would like to see DOMA repealed. Just this week, a number of Democrats in the House of Representatives announced they would be introducing legislation to do just. Unlike the Massachusetts lawsuits, however, the repeal would apply to both parts of DOMA.

Another legal attack on DOMA was recently turned back. This one was brought by a same-sex couple in California who argued that it was unconstitutional for one state to not recognize a same-sex marriage from another. Their lawsuit was disfavored by activist groups because they felt it was premature. Many of the legal arguments made in the case were flawed as well, so it was quickly dismissed.

Interestingly, though, it was not the case but the federal government’s role in it that made headlines. Early in the suit, the federal Department of Justice had filed a submission to the court that pointed out that DOMA served important government interests. The DOJ noted that marriage is society’s best way of protecting a child’s opportunity to know and be raised by his or her own mother and father-certainly a vital interest. This is also an interest that has been recognized as a valid justification for state marriage laws by the highest courts of New York, Maryland and Washington. The argument did not go over well with activist groups and the media who complained that the argument was “hurtful.”

Thus, the next time the DOJ had to file a brief in the case, the arguments in favor of a child-centered view of marriage had disappeared. In fact, they were expressly repudiated. Instead, the brief announced that the Administration thought DOMA was a bad idea and made clear it was only defending the current marriage law reluctantly. This kind of attempt to undermine marriage laws by attorneys who are supposed to be defending them is not new. The attorneys general of California and Connecticut also refused to offer robust defenses of their states’ marriage laws and the attorney general of Iowa did not even bother to participate in a lawsuit challenging that state’s law.

Consequences of Losing DOMA

These attacks on DOMA undermine not only the law itself, they distort the meaning of constitutional provisions, threaten the separation of powers, and threaten to harm marriage.  If the marriage definition provision of DOMA is lost, a new definition of marriage imposed by courts and legislatures in a handful of states would apply to all federal laws that reference marriage.  All without input from the taxpayers in other states who would be helping to cover those costs.

While a state can decide on its own laws, it has no “right” to demand federal funding to cover the costs of those decisions. If Massachusetts were really concerned about federalism, perhaps it could argue that the federal government ought to get out of the business of providing funding for a myriad of social programs, rather than argue (as it is in this case) that Massachusetts should be able to set the conditions for receiving federal money.

It would also put the federal government in the position of endorsing the idea that marriage is just about adult choices and that men and women, mothers and fathers, are essentially interchangeable.

If Congress were to repeal both parts of DOMA, other states’ definitions of marriage could be threatened. It is probably the case that a state could refuse to recognize another state’s same-sex marriage even without DOMA, but DOMA makes that clear as a matter of federal law. Doing so decreases the likelihood that a state or federal court would find a spurious “right” to have a same-sex marriage recognized by other states.

A repeal of DOMA could embolden some judges and legislators who would see it as a sign that the political will to resist importation of same-sex marriages across state borders is flagging. The majority of states with state marriage amendments would be protected but the states without such amendments would be particularly vulnerable.

There is also no telling whether a federal court might decide to create a “constitutional” mandate to recognize same-sex marriages even for states with marriage amendments.

Marriage is worth protecting and because this is so, DOMA is worth preserving as well.