By Shannon Minter, Esq.
National Center for Lesbian Rights Legal Director
(San Francisco, CA, February 23, 2011)—Today brings momentous news from President Barack Obama and the federal Department of Justice about the discriminatory and offensive so-called “Defense of Marriage Act,” or DOMA. This morning, Attorney General Eric Holder announced that, at the urging of the President, as well as based upon Mr. Holder’s own assessment, the Department of Justice will no longer defend Section 3 of DOMA—the section that prohibits the federal government from recognizing legal marriages between same-sex couples.
The Attorney General also announced that the President and the Department of Justice agree that laws that discriminate based on a person’s sexual orientation are presumptively invalid and should be subject to heightened judicial scrutiny, just like laws that discriminate based on sex, religion, national origin, and race.
In further welcome news, Congressman Jerome Nadler and Senator Dianne Feinstein announced plans to introduce legislation that would repeal DOMA entirely. It is long past time for Congress itself to undo the damage it did to our community by enacting DOMA in 1996.
These developments provide true cause for celebration. DOMA will remain in effect until it is either repealed by Congress or invalidated by the courts. But today’s events represent hugely significant steps toward the end of this unprecedented and mean-spirited law that has caused so much pain for our community over the past 15 years.
Attorney General Holder’s announcement was a courageous act by the Obama administration that will change forever the way that the nation views our community’s struggle for equality. Showing strong leadership, President Obama himself made the determination that as a matter of constitutional law, it is not reasonable for the government to defend the constitutionality of DOMA, or any law that discriminates based on sexual orientation. President Obama looked at the history of discrimination against LGBT people, and rightly concluded that laws that target people based on their sexual orientation are highly likely to be based on nothing more than prejudice, and should therefore receive extra scrutiny by the courts.
What does this mean, in practical terms? Attorney General Holder’s actions are fully consistent with the practice of past Attorneys General—including California’s Attorney General, in the ongoing Prop 8 litigation—who have decided that some laws are so blatantly discriminatory that they cannot and should not be defended in court. At the same time, the Executive Branch is responsible for enforcing the law. This means that, although the Obama Administration refuses to defend DOMA’s constitutionality, the federal government will continue to withhold federal benefits to married same-sex couples until DOMA is repealed by Congress or invalidated by the courts.
In the meantime, however, the Department of Justice has a powerful voice as the government’s official representative. The Obama administration has forcefully acknowledged that discriminatory laws like DOMA are unconstitutional, and from now on, in cases challenging those laws, the Obama administration will weigh in on the side of fairness and equality. Several legal challenges to DOMA are already underway in courts in Massachusetts, Connecticut, New York, California, and elsewhere, and as those cases make their way through the courts, the judges deciding them will hear persuasive argument from the Department of Justice that DOMA should be struck down. This is bound to have an impact, and to hasten the day when it is clear in every court across the nation that laws that discriminate based on sexual orientation cannot stand.
It is true that, as many people point out, marriage equality is not the only issue that matters for our community. Our work will not be over when DOMA is repealed. But we can’t underestimate the significance of having the President and the Department of Justice recognize that discrimination based on sexual orientation is presumptively invalid. That is history-changing, and will have ramifications in every area of our lives. Especially in a culture in which the constitution and the law play a major role in shaping public opinion, it is extremely powerful for the federal government to recognize publicly that LGBT people have suffered a history of discrimination and that sexual orientation is not relevant to a person’s ability to participate in society or contribute to society.
Challenging a discriminatory law like DOMA is about much more than the specific rights at stake. Laws that discriminate against a particular group and mark that group as unequal have far-reaching negative consequences. Laws that discriminate against LGBT people with respect to marriage are particularly damaging because they directly reinforce the harmful stereotype that LGBT people do not form genuine relationships or true family bonds—that our identities are only about selfish individual interests and thus are the antithesis of “family values.” Those are the same stereotypes that make it hard for many families to accept their LGBT children. Those stereotypes are devastating, and having a federal law that perpetuates them has caused enormous harm.
Eliminating DOMA will alleviate much harm, but we must see that goal as part of a bigger picture. Eliminating DOMA will not end the ways that many other laws and government policies unfairly target LGBT people of color and low-income LGBT people. For example, in our work, we have seen that an LGBT parent of color is more likely to face an unjustified investigation by child protective services because low-income people of color are disproportionately involved in state programs that scrutinize their lives more closely. A black transgender student facing harassment because of his race and gender is more likely to receive harsher punishment as the instigator of a fight because of racial stereotypes and assumptions. Eliminating the terrible stigma imposed by DOMA changes societal perception of who LGBT people and our families are in a way that benefits all LGBT people, but is not the only solution. We must strengthen our commitment to fighting laws that target people of color and low-income people so that we can transform our society into one where all people can live freely.
We still have a long way to go until the shameful, discriminatory legacy of DOMA is gone from the books, and even farther to go till we live in a world in which full justice for all LGBT people has been achieved. But thanks to President Obama’s courage, we are closer to that day.
NCLR Communications Director Erik Olvera | Office: 415.392.6257 x324 | EOlvera@NCLRights.org