DOMA Repeal Not Likely to Happen Soon Despite Biden's Remarks

Correction appended

Fresh off of the "don't ask, don't tell" victory, Vice President Joe Biden said in a morning show interview that legislation approving gay marriage is inevitable.

Biden, a Christmas Eve guest on ABC's "Good Morning America," said there is "an inevitability for a national consensus on gay marriage."

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He based this assertion on public opinion. "I think the country's evolving," Biden said.

He cited the work that was done for DADT, and predicted that the American public will likely pave the way for President Barack Obama to act on the Defense of Marriage Act as Obama did for the DADT repeal.

"We prepared the ground so that it is so widely accepted as it is today by the military, and I think the same thing is happening across the country with regard to the issue of marriage," Biden opined.

According to Pew Research polls released this year, 60 percent of Americans expressed a favorable view on allowing gays and lesbians to serve openly in the military. By comparison, 42 percent of Americans favor allowing gays and lesbians to legally marry.

While Obama expressed that his view on same-sex marriage was changing to favor it, White House Press Secretary Robert Gibbs was apprehensive during last Wednesday's press briefing to make a statement on behalf of the president regarding future actions.

When pressed by reporters after the signing of the DADT repeal, Gibbs reiterated Obama's strong support for civil unions.

Jordan Lorence, senior counsel for Alliance Defense Fund, doesn't believe a legislative repeal of the federal Defense of Marriage Act is going to happen in the next two years.

Similar to the American public, Lorence believes that lawmakers are divided over same-sex marriage. "I think there would be significant reluctance both in the House and Senate to repeal DOMA," he asserted.

But he noted that public lawsuits against DOMA pose a bigger threat to federal law. "It's very likely that a court could strike down DOMA," he said.

Massachusetts courts have already attempted to strike down the 1996 law that defines marriage as a legal union between one man and one woman. ADF attorneys filed paperwork this month to defend the act from two Massachusetts judgments threatening to void the law.

There are also two other legal challenges from the American Civil Liberties Union and the Gay and Lesbian Advocates and Defenders pending against DOMA. Both groups filed multi-plaintiff lawsuits in November.

Lorence said if judgments in any of these cases decide against DOMA, it will be appealed to the U.S. Supreme Court. If that ever happens, the justices will rule on the side of public policy, the ADF counsel predicted. He noted that for Supreme Court justices to overturn DOMA would be an act of "judicial activism."

DOMA defines marriage as "a legal union between one man and one woman as husband and wife," and the word "spouse" as "a person of the opposite sex who is a husband or a wife" for the benefit of federal laws for items such as federal employee benefits. The act also re-establishes states' right to define marriage in their own terms without having to defer to other state rulings.

Correction:  Monday, December 27, 2010:

An article on Monday, December 27, 2010, about Vice President Joe Biden's remarks on gay marriage incorrectly identified the White House Press Secretary as Robert Gates. The current White House Press Secretary is Robert Gibbs.

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