Defense of Marriage Act Defended by Obama DOJ

Recently, the Department of Justice moved to dismiss a lawsuit challenging the Defense of Marriage Act. The move itself, and the particular arguments made in support of the law have drawn criticism from groups waiting for Obama to make good on campaign promises to get the Defense of Marriage Act repealed.

For a nice description the of why the Obama administration likely saw a need to defend the Act, why they will likely win and where they may have gone too far, see this article by Cornell Law Professor Mike Dorf.

The Defense of Marriage Act was passed in 1996 and signed into law by President Clinton. It does two important things. It:

• defines marriage to be between one man and one woman for purposes of federal law (implicating taxes, federal employment benefits, immigration and other arenas); and
• specifies that no state has to recognize a same-sex relationship as marriage, even if another state has deemed it a marriage.

Normally, without that second part, one might think that all states need to recognize same-sex marriages from other states for the same reason they have to recognize heterosexual marriages from other states -- the Constitution's full faith and credit clause. It requires states to recognize the public acts, records, and judicial proceedings of every other state. Marriage is typically viewed as a public act.

The case is question involves a same-sex couple married under California law (during the window subsequently closed by Proposition 8). They sued arguing that the Defense of Marriage Act violates the Consitution's full faith and credit clause, their right to travel, their due process rights, along with other constitutional rights.

Numerous procedural problems plague the plaintiffs' complaint. What has most rankled same-sex marriage advocates, however, is not the Obama administration pointing out these procedural problems, but rather the arguments it makes for why the Defense of Marriage Act is valid even if the complaint were procedurally adequate.

For example, the government's motion points to other instances where states have been allowed not to recognize marriages from other states. The wonderful company in which the government lumps same-sex marriages includes:

• an Italian man's marriage to his niece;
• the marriage of a 16 year girl from Indiana; and
• the marriage of first cousins from Arizona.

Perhaps more substantively disturbing to same-sex marriage advocates was the government's argument that the Defense of Marriage Act applies equally to heterosexual and homosexual people alike. In case you had wondered, it looks like heterosexual couples, just same-sex couples, can't have their same-sex marriages recognized by other states or by the feds.

As explained by Preofessor Dorf, the case will likely be dismissed on procedural grounds (basically because the plaintiffs have failed to allege an actual injury, such as plans to travel to another state where their marriage would not be recognized).

How the Obama administration reacts to better constructed challenges to the Defense of Marriage Act remains to be seen.

• The Government's Motion to Dismiss (FindLaw)
• Obama Faces Gay Groups' Growing Anger (CBS News)
• The real test for Obama on DOMA is on June 29 (Daily Kos)
• Obama to extend some benefits to gay partners of federal employees (LA Times)
• Domestic Partnerships (provided by Anthony M. Zezima, P.C.)
• Marriage (provided by The Law Offices of Susan Millican O'Brian & Associates)