Wednesday, February 23, 2011

A Fatal Blow for DOMA

President Barack Obama has ordered the Department of Justice to stop defending Section 3 of the Defense of Marriage Act [DOMA]. In a letter to House Speaker John Boehner, the Attorney General Eric Holder gave the rationale of the White House and the Department of Justice for this decision.

Moreover, the legislative record underlying DOMA’s passage contains discussion and debate that undermines any defense under heightened scrutiny. The record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships – precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against. See Cleburne, 473 U.S. at 448 (“mere negative attitudes, or fear” are not permissible bases for discriminatory treatment); see also Romer, 517 U.S. at 635 (rejecting rationale that law was supported by “the liberties of landlords or employers who have personal or religious objections to homosexuality”); Palmore v. Sidotti, 466 U.S. 429, 433 (1984) (“Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”).


Note the language employed by the U.S. Attorney General in his letter explaining “why” the Department of Justice will no longer defend Section 3 of DOMA and considers it to be unconstitutional. He specifically states, “the kind of sterotype-based thinking and animus the Equal Protection Clause is designed to guard against.” This expresses almost verbatim Judge Walker’s ruling on the unconstitutionality of Prop 8 in California. In that decision Judge Walker also stated that the proponents were motivated by an animus against same-sex couples.

What is beginning to take shape here is an increasingly clear legal opinion based on the findings of science. The American Psychological Association bluntly states

Is sexual orientation a choice?

No, human beings cannot choose to be either gay or straight. For most people, sexual orientation emerges in early adolescence without any prior sexual experience. Although we can choose whether to act on our feelings, psychologists do not consider sexual orientation to be a conscious choice that can be voluntarily changed.


This represents reasoned thinking and that is one of two critical components in the advancement of our rights. Julian Bond, the former President of the NAACP stated, “this is the Civil Rights movement of this generation.” The other critical component in our struggle for justice is that our cause be reasonable. For political parties and politicians that means voter approval, and in 2010, according to the Gallup Poll Organization, for the first time fifty percent of Americans accepted Same-Sex relationships.

The hesitation on the part of the judiciary in declaring laws such as DADT and DOMA unconstitutional is historically based. The landmark Roe v. Wade decision by the U. S. Supreme Court in 1973 was far ahead of popular opinion at that time. The Court experienced a backlash that still manifested today by the social conservative political movement and accusation of “activist judges.”

What this means is that although the Executive branch will continue to enforce DOMA, it will not defend it in court. Eventually, the law will be ruled unconstitutional and Same-sex married couples will enjoy the federal protections and benefits (e.g. income tax, immigration, etc) currently enjoyed by opposite-sex couples.

Today we have won a battle in an ongoing war to claim full Civil Rights for LGBTQ people, and ENDA is next. It is important to remember that even after the signing of the Equal Rights Act in 1964 and the establishment of full legal equality racism did not end. The NAACP is still fighting for the day of full social equality. So it is premature and unwise to claim this is the “Victory.” We are refreshed and encouraged, but the struggle continues.

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