The Defense of Marriage Act, or DOMA, has come under a more severe attack now that the New York same-sex marriage law has bolstered the appetite of gay activists to see results in other states as well.
DOMA, which forbids federal recognition of same-sex marriage and protects other states from having to recognize such unions from another state, can prevent gay activists from using the New York’s legislation to challenge laws in other states where same-sex marriage is banned, The New York Times reported Monday.
The daily’s hint that opposition to DOMA is now likely to increase seems to be spot on.
Sen. Kirsten Gillibrand of New York, supporter of gay marriage, was prompt in using the frenzied response that followed the passing of the marriage bill in that state last week to gain greater support for her call to repeal DOMA.
“It’s a huge victory for all of us, but our work is not done,” reads a message on the Repeal DOMA website where Gillibrand and Democracy for America are inviting visitors to sign a petition against the law. “The reality is that the Defense of Marriage Act prevents all legally married same-sex couples in the U.S. from receiving over 1,000 federal rights and privileges that straight married couples enjoy. We must repeal this unjust law.”
New York’s law, which applies to 19 million residents and those from outside the state as well, is expected to result in a surge in same-sex marriages as many of the couples migrate to states that do not recognize gay marriage. And that may force more states to “deal with interstate recognition,” the Times quoted Douglas NeJaime, an associate professor at Loyola Law School, as saying.
This is a possibility that cannot be overlooked given that 30 states have constitutional amendments that ban same-sex marriage. And if DOMA is repealed, the courts may begin the process of redefining marriage in the states that stand against it, Tony Perkins, the president of the Family Research Council in Washington, told the daily.
Given that in February, President Barack Obama said he would “no longer assert its (DOMA) constitutionality in court,” a virtual invitation to activists to challenge it in court, the law will be seen as a soft target. The Justice Department also called for the law to be subjected to a more rigorous standard to avoid discrimination against a minority group.
Former Speaker of the House Newt Gingrich says Obama should instead enforce DOMA. “I helped sponsor the Defense of Marriage Act which basically doesn’t transfer automatically to all 50 states. I think the president should be, frankly, enforcing that act and I think we are drifting towards a terrible muddle which I think is going to be very, very difficult and painful to work our way out of,” the GOP presidential candidate told reporters in Iowa June 25.
“I believe that marriage is between a man and a woman. I think that’s what marriage ought to be and I would like to find ways to defend that view as legitimately and effectively as possible,” O. journalist Kay Henderson quoted Gingrich as saying.
However, Sen. Gillibrand, who co-sponsored the Respect for Marriage Act which seeks to repeal DOMA and joined with Democracy for America to launch a national online campaign to rally support for its repeal, is going full swing in her activism. “It’s imperative that we begin to put faces and names to this discriminatory policy. Only then will we truly be able to change hearts and minds, both among my colleagues in Congress and around the country,” she said in an article for the New Civil Rights Movement.
It is still unclear how DOMA will apply in interstate recognition of marriages, and constitutional experts have diverse, even conflicting, views. New York Times writer John Schwartz thinks if the Defense of Marriage Act is overturned it is unlikely to change the states’ ability to say no to gay and lesbian marriage. “But a more sweeping decision by the United States Supreme Court declaring a constitutional right for same-sex couples to marry would,” he warns.
DOMA, which seeks to encourage responsible procreation and child-bearing and defend traditional heterosexual marriage, was passed by both houses of Congress by large majorities and signed by President Bill Clinton in 1996.