The decision of Eric Holder and the Obama administration represents a form of political courage, but of the wrong sort. I have no desire whatsoever to defend DOMA as a matter of federal policy and would surely urge the Congress to repeal it. My own libertarian instincts are that the government should not use its control over licenses or public funds to influence the way in which cash benefits and job opportunities are distributed throughout the country. But at the same time, the DOJ’s invocation of a history of discrimination against gays and lesbians and call for a level of heightened scrutiny is not the way in which this question should be resolved.
To start from the beginning, this is what DOMA, passed by large bipartisan majorities in both Houses, says.
Section 2. Powers reserved to the states:
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
Section 3. Definition of ‘marriage’ and ‘spouse’:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.
DOMA reflects the universal past practice in virtually every place in the world at the time of its adoption. It is now declared unconstitutional under a heightened scrutiny standard, which comes from no where in particular, and which is not attached to any particular clause of the Constitution, given that the equal protection guarantees run, formally at least, only against the states. Gay marriage is often compared with polygamy, and if the ban on the former is regarded as constitutionally required, the ban on the second should be more so. Unlike the status of gay marriage, the practice of polygamy historically has been far more extensive, and no argument that it is subject to abuse could lead to a ban on polygamy, any more than it could lead to a ban on all marriage.
What has happened here is that the President’s team thinks that it is possible to transform in fifteen years from a state of affairs where gay marriage was nowhere practiced, to one today in which no person could raise any rational objection to the practice that has historically never been adopted. The presidential coup takes place at a time when the political forces in support of gay marriage have reached levels of strength that were thought unobtainable even in 1996. There is no discrete and insular minority on this issue.
Nor does the President note what it means to brand a practice as irrational. To this day there are thoughtful people in religious groups that continue to hold fast against gay marriage, and their rights to determine what happens to their membership are necessarily impacted by this decision, for there is nothing in the curt statement from the Obama administration which explains why the Constitution should not be read to require the President of the Congress to impose obligations on these organizations to accept gay couples into their ranks. Orthodox Jews and Roman Catholics beware!
As to the legal effects of this decision, the choice of the President to surrender unilaterally (which could have been anticipated from his earlier actions) makes it unclear whether any private party has standing to defend DOMA. It also leaves open the question of whether the President has taken care to see that the laws are faithfully executed if new administrative orders will now include gay couples in benefits that Congress has denied to them by statute. This action therefore could lead to a constitutional crisis of some significance. It would have been so much wiser to stay out of choppy waters by working first for a repeal of the statute. But who can expect that level of prudence from this administration?