The Future of the Defense of Marriage Act

By Aimee Bouchard

On Wednesday February 23, Attorney General Eric Holder announced that the Obama administration would no longer defend Section 3 of the Defense of Marriage Act.¹

The decision not to defend DOMA was in relation to two pending cases Pedersen v. OPM and Windsor v. United States. The argument in both of these cases is that it is an unconstitutional Equal Protection violation for the federal government to designate which marriages it will consider valid.

The Defense of Marriage, signed into law by President Clinton in 1996, has two main provisions. The first is that the federal government defines marriage as only between one man and one woman.² The second is that no state needs to recognize any same sex union or marriage preformed in another state as a marriage.³ Basically this means that for same-sex couples married in one of the states that does allow marriage, the couple is a legal stranger in the eyes of the federal government or in a state with unfavorable laws.

What makes DOMA unusual, and constitutionally questionable, is that normally the federal government leaves the issue of marriage to the individual states. The federal government recognizes a marriage as valid, so long as it is valid in the state that it was preformed in. For example, the federal government will recognize a common-law marriage if it is valid in the home state, even though common law marriages are not the law of all states. The federal government also recognized interracial marriage, when many states did not. However, with DOMA, the federal government is singling out same sex marriage for unequal treatment under the law.

When a classification means that one group gets treated differently than another group, the Equal Protection Clause of the Constitution comes into play. Normally, the government only needs to show that the classification is rationally related to a legitimate state interest for the law to be considered constitutional. However, if the class that is being targeted for unequal treatment is a “suspect” class, then the law comes under heightened scrutiny. Suspect classifications include Race, Religion, and National Origin. When a suspect class is targeted by a law the government must show that the classification is necessary to achieve a compelling state interest, a much higher burden to satisfy⁴. Up until now, caselaw has been unclear as to whether sexual orientation is a suspect classification.

The statement of the Attorney General clearly states the President Obama opposes DOMA and believes it to be unconstitutional, and believes that classifications based on sexual orientation should be reviewed according to the heightened scrutiny of a suspect class. Since the Attorney General and the President believe that the law is unconstitutional, they have decided not to defend the law on appeal. Instead, they will remain a party to the cases and continue to represent the interests of the United States.

Of course conservatives are now up in arms saying that this is a violation of Obama’s duty to as president to uphold the laws of the United States, but what does his action really mean for DOMA’s future?

While this can be considered a positive step for same-sex marriage activists, it doesn’t mean that DOMA is dead. The executive branch has a duty to uphold the laws of the United Sates and therefore the federal government will still be enforcing DOMA, the Department of Justice will simply no longer be defending it in court. In order for DOMA to be overturned, it would take an act of congress, or a final ruling by the court.

Speaker of the House John Boehner has stated that Congress may itself continue to defend the law in court.⁵

Its also important to remember that these two cases are not the only cases challenging the Defense of Marriage Act. There have been numerous cases in which DOMA has been an issue.⁶ So until there is a final decision by the Court, or a change from Congress, the Defense of Marriage Act will still be a problem for alternative families to contend with.