In light of the Obama Administration's recent announcement that it will no longer defend the constitutionality of DOMA in the courts, the following questions and answers have been compiled in order to clarify the position of the Obama Administration and to inform our readers of the basic facts and issues relevant to the current situation.
The Defense of Marriage Act (DOMA), Pub. L. 104-199, 100 Stat. 2419, is a federal law which (1) defines marriage as "only a legal union between one man and one woman as husband and wife" and defines spouse as "a person of the opposite sex who is a husband or a wife" for purposes of federal law; and (2) affirms the authority of the states to deny recognition of any "relationship between persons of the same sex that is treated as marriage under the laws" of another State, as granted by the Full Faith and Credit Clause, Article IV of the Constitution.
DOMA was enacted in response to attacks on marriage and to threats to State legislative authority to enact and maintain marriage laws through the legislative process. The Hawaii case, Baehr v. Miike (1996), served as the catalyst for passing DOMA. That case held that same-sex marriage is protected in the Hawaii Constitution. However, this decision was ultimately mooted (i.e., rendered ineffective) by the people of Hawaii when they voted for a constitutional amendment in 1998 stating that: "The legislature shall have the power to reserve marriage to opposite-sex couples."
DOMA was signed into law by President Clinton on September 21, 1996. It passed in the Senate by a vote of 85-14, and in the House by a vote of 342-67. Prior to voting, the proper and full committee hearings and floor debates took place. Since DOMA was passed, the vast majority of states have followed suit, adding their own marriage protections in their State constitutions and laws.
Two Massachusetts cases challenging the constitutionality of DOMA are currently being litigated in the courts. The cases are Gill v. Office of Personnel Management and Massachusetts v. United States Dept. of Health and Human Services. On July 8, 2010, District Judge Joseph Tauro held in the two companion cases that DOMA is unconstitutional under the Fifth and Tenth Amendments. They are now on appeal to the First Circuit.
Two other cases challenging DOMA are pending in federal district courts. Pedersen v. Office of Personnel Management is pending in federal district court in Connecticut, and Windsor v. United States is pending in a New York federal district court.
Since President Obama took office two years ago, his Administration has not defended DOMA in court in any meaningful way. On February 23, 2011, Attorney General Eric Holder formally announced that the Obama Administration will no longer defend the constitutionality of DOMA in court. Although the Administration will not defend DOMA in pending court cases or in future litigations, the Attorney General's statement clarified that "DOMA will continue to remain in effect unless Congress repeals it or there is a final judicial finding that strikes it down." (See http://www.justice.gov/opa/pr/2011/February/11-ag-222.html)
Echoing the opinions of Judge Tauro, the Obama Administration stated that DOMA is discriminatory and "should be subject to a heightened standard of scrutiny." According to the Administration, DOMA is not founded on any "reasonable" argument, and Congress acted irrationally when it enacted the law. Notably, the Administration did not provide any arguments of its own to refute Congress' specific arguments supporting DOMA as recorded in DOMA's legislative and judicial history (statements of purpose, hearing records, floor debate records, testimony, court opinions and briefs, etc.). Simply stating that something is irrational is not in itself a credible argument of any kind.
A "standard of review" is an analysis applied by courts to determine whether or not a law is constitutional. The "rational basis" test is deferential to the state; as long as there is a reasonable relation between the law and the state's purpose, the law is constitutional. The "strict scrutiny" standard is a heightened level of review, reserved only for specific cases; to pass this more difficult test, the state must prove that the law in question is absolutely necessary to achieve a compelling state interest (i.e., not just "reasonable.").
Judge Tauro ruled that DOMA does not pass the rational basis review. According to Tauro and Obama, it is irrational for a state to define marriage as between one man and one woman. However, neither Judge Tauro nor the Obama Administration have adequately addressed that argument of the Supreme Court and Congress that marriage between one man and one woman is, and has been, fundamental to the continued existence of any human civilization. As the Supreme Court stated in its landmark decision, Loving v. Virginia (1967): "Marriage is one of the basic civil rights of man, fundamental to our very existence and survival." Even a person who supports the same-sex cause can acknowledge that this is a perfectly rational conclusion. For Judge Tauro and the Obama Administration to deny this rationality is itself irrational.
The higher "strict scrutiny" standard is applied in discrimination cases only if a "suspect class" (race, gender, religion) is being discriminated against. Sexual orientation has not been held - by law or by the Supreme Court - to be a suspect class, so same-sex marriage cases should not apply the higher standard of review. However, Tauro and Obama seek to re-classify homosexuality and elevate it to the status reserved for race, religion and gender.
Lastly, the Supreme Court has already established that laws defining marriage between one man and one woman are not discriminatory in the first place. In Baker v. Nelson (1972), the Supreme Court held that laws prohibiting same-sex marriage do not violate the Equal Protection Clause, Due Process Clause and right to privacy under the 14th Amendment. The pending cases challenging DOMA directly oppose this Supreme Court precedent.
By refusing to defend DOMA in court, the Obama Administration is giving judges a free pass to legislate the marriage issue from the bench, thereby overreaching the constitutional limits of their judicial authority and infringing on the legislative authority granted to Congress in the Constitution.
By branding DOMA as "irrational," the Obama Administration has attacked the integrity of the legislative process taken by Congress when it enacted DOMA. In doing so, the Obama Administration also challenged the sanity and intellectual ability of all of the Members of Congress who voted for the passage of DOMA. In spite of these harsh accusations, the Administration has yet to offer pointed arguments specifically disproving the credibility of the arguments and supporting evidence considered and recorded by Congress when it enacted DOMA.
The Massachusetts cases that are on appeal in the First Circuit will eventually reach the Supreme Court. With no one to defend the constitutionality of DOMA, the Obama Administration hopes that DOMA will be struck as unconstitutional. However, in his February 23, 2011 statement on the Administration's decision not to defend DOMA, Attorney General Eric Holder stated that: "Members who wish to defend the statute may pursue that option." This leaves a chance for Congress to step in and defend DOMA.