President Barack Obama yesterday ordered the Justice Department to stop defending Section 3 of the Defense of Marriage Act (DOMA), which was passed in 1996 and defines marriage as only between a man and a woman. Sparked by a pair of lawsuits that challenged Section 3, both of which originated in districts that require the administration's legal team to defend its constitutionality, Obama concluded that Section 3 is, indeed, unconstitutional. In a letter to Congress following the president's order, Attorney General Eric Holder said that while the administration will continue to enforce the act, the burden of defending its constitutionality will now be placed on Congress. If Congress so chooses, it can become involved in DOMA cases with its own lawyers.
Obama's decision to discontinue his administration's defense of Section 3 represents an important shift in the way that such same−sex marriage laws will be viewed in the government. Though Obama had in the past voiced objections to DOMA, his administration had up until now honored the law and sent Justice Department lawyers to defend its constitutionality. Obama's executive order and proclamation that Section 3 of DOMA is unconstitutional will raise awareness of and inquiry about the act and push Congress to readdress the issue.
In addition to defining marriage as between a man and a woman, DOMA says that same−sex marriages recognized in one state are not required by federal law to be recognized by any other state. DOMA fundamentally asserts that same−sex couples do not have the same rights as other couples. Not only is this discriminatory, but it is also a clear violation of the Equal Protection Clause of the 14th Amendment and should not be defended by the government.
Obama's assertiveness in refusing to defend an unconstitutional policy is commendable, and it has already begun to stir up action. Shortly following Holder's letter, Sen. Dianne Feinstein (D−Calif.) issued a statement saying that she intends to introduce legislation repealing DOMA completely.
Following Obama's decision and Feinstein's statement, Congress will soon have the opportunity to repeal an unconstitutional act that should never have been passed in the first place. Several lower courts have ruled DOMA in its entirety to be in violation of citizens' rights, and other Congressional laws and Judiciary rulings since 1996 have made great strides in recognizing laws against homosexuals as discriminatory and unconstitutional.
Though Obama's decision to stop defending Section 3 certainly deserves praise and represents an important step toward the potential repealing of DOMA, it is not enough. DOMA is still in place; all of its provisions still have the force of law. And the Justice Department has remained mum on the rest of the act, meaning that the marital rights of same−sex couples who move across state lines or come from other countries will not be protected.
Congress should seize this opportunity to repeal DOMA and ensure that the rights of all citizens are secured.
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