Obama’s DOMA Decision Deconstructed

Two weeks ago I took a GLBT continuing legal education course in order to be better prepared to mediate same sex divorce and separation issues.  As a result, I became much more familiar with DOMA (Defense of Marriage Act) and it’s significance.  This is the federal law that prohibits marriage between same sex couples.  It was, therefore, of particular interest to me that only days after my course President Obama announced the Justice Department’s decision to not defend Section 3 of DOMA relating to the prohibition of same sex marriages.  My first reaction was a raised eyebrow–this is an odd place to draw a line.  Is this a newer version of the recently repealed don’t ask, don’t tell military policy?

I knew I wanted to blog on this issue so my research began.  First I was rewarded by finding other legal blogging colleagues who also saw the don’t ask, don’t tell analogy.  What was more disconcerting though was what struck me as a lawyer and made the former law student in me bristle–how was the Executive Branch of the government declaring a Federal Law unconstitutional?  Isn’t that the job of the Federal Judiciary?  I found significant support for this confusion and concern as well.  In an article by Adam Winkler of the Huffington Post, are we setting ourselves up for any President declaring unconstitutional any law they find distasteful?

Significantly the decision appears to be based on a trend which has already taken place in the federal judiciary.  Of particular relevance in Attorney General Holder’s statement, “[m]uch of the legal landscape has changed in the 15 years since Congress passed DOMA, the Supreme Court has ruled that laws criminalizing homosexual conduct are unconstitutional. Congress has repealed the military’s Don’t Ask, Don’t Tell policy. Several lower courts have ruled DOMA itself to be unconstitutional.  Section 3 of DOMA will continue to remain in effect unless Congress repeals it or there is a final judicial finding that strikes it down, and the President has informed me that the Executive Branch will continue to enforce the law. But while both the wisdom and the legality of Section 3 of DOMA will continue to be the subject of both extensive litigation and public debate, this Administration will no longer assert its constitutionality in court.”

President Obama’s stance may be just a stepping stone pointing our society toward a different attitude toward marriage.  As a result of my research I discovered heterosexual couples who also support the recognition of civil unions, not out of a feeling of solidarity toward their neighbors, but for their own lifestyle and interests.  Senior citizens in Illinois are awaiting the Governor’s signature on a Bill making civil unions available to heterosexual couples.  Rep. Greg Harris, D- Chicago stated that, “seniors with survivor’s benefits from Social Security or a pension could lose that income if they remarry.  A civil union allows them to keep that benefit while providing the same state-level rights as a marriage.”

Finally I found that heterosexual couples in France have been opting for civil unions over marriage since 1999.   In an article in the New York Times I found out that in 2009, “the overwhelming majority of civil unions [were] between straight couples.”  According to the article, one year after the law was passed, in 2000, 75% of civil unions were between heterosexual couples.  By 2009 that figure had grown to 95%.  According to the same article, even the Roman Catholic Church has stated that civil unions don’t pose “a real threat” to the institution of marriage.

Whether you are for or against the implementation of civil unions or marriage between individuals of the same sex, President Obama’s stance was a merely stepping stone in the ongoing debate for and against DOMA.