If you've been in a cave lately, you might not have noticed that the Obama administration has come under fire for filing a disturbing, incest-invoking legal brief defending the "Defense Of Marriage Act" (DOMA) -- you know, that federal law passed under Clinton that prevents same-sex couples from receiving federal benefits, and also allowing states to refuse to recognize same-sex marriages legal in other states (violating the Constitution's Full Faith and Credit Clause). The NYT has chimed in with their own editorial, titled "A Bad Call on Gay Rights." Here's a taste:
The brief insists it is reasonable for states to favor heterosexual marriages because they are the "traditional and universally recognized form of marriage." In arguing that other states do not have to recognize same-sex marriages under the Constitution's "full faith and credit" clause, the Justice Department cites decades-old cases ruling that states do not have to recognize marriages between cousins or an uncle and a niece.
These are comparisons that understandably rankle many gay people. In a letter to President Obama on Monday, Joe Solmonese, president of the Human Rights Campaign, a gay rights organization, said, "I cannot overstate the pain that we feel as human beings and as families when we read an argument, presented in federal court, implying that our own marriages have no more constitutional standing than incestuous ones."
The brief also maintains that the Defense of Marriage Act represents a "cautious policy of federal neutrality" -- an odd assertion since the law clearly discriminates against gay couples. Under the act, same-sex married couples who pay their taxes are ineligible for the sort of federal benefits -- such as Social Security survivors' payments and joint tax returns -- that heterosexual married couples receive.
In the presidential campaign, President Obama declared that he would work to overturn the Defense of Marriage Act. Now, the administration appears to be defending it out of a sense of obligation to support a validly enacted Congressional law. There is a strong presumption that the Justice Department will defend federal laws, but it is not an inviolable rule.
