President Obama’s policy reversal of the 1996 Defense Against Marriage Act (DOMA) last Wednesday is both “a victory” and one big step in the right direction says Dan Choi, a gay rights activist who is known for his discharge from the military under Don’t Ask, Don’t Tell.
By finding DOMA unconstitutional, the Justice Department no longer has to defend the act in federal court. This is significant, considering that there are currently two cases challenging the legality of DOMA being heard in the federal court system. Although Section 3 of DOMA still stands, laws that curb the rights of same-sex couples will now have to satisfy a higher level of scrutiny in the courts.
Put into effect during the Clinton administration, DOMA states that the federal government will not recognize same-sex marriages and that states won’t be forced to acknowledge same-sex marriages from other states. The part of the law that’s been most contested in recent court cases is Section 3, which makes unavailable federal tax returns and other federal spousal benefits to same-sex couples.
In discussing his reasons for supporting DOMA, Attorney General Eric Holder observed that the legal climate towards the issue of homosexuality has changed over the last 15 years, becoming much more progressive. Since DOMA was put into effect, laws criminalizing homosexual acts have been found unconstitutional and earlier this year Congress repealed the Don’t Ask, Don’t Tell policy. Lower courts have already for some time now been ruling that DOMA is not constitutional. Holder said that the Justice Department has for a long time now not seen the DOMA as “reasonable.”
Obama, who still does not support same-sex marriage but is open to the idea of civil unions, said that his reason for reversing the act is that it "contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships - precisely the kind of stereotype-based thinking and animus the (Constitution's) Equal Protection Clause is designed to guard against."
Obama realizes that these laws are an unjust treatment of a minority group, calling such policies as DOMA “unnecessary and unfair.” He commented that his view on gay marriage might change as current policy towards same-sex couples also changes and becomes more egalitarian.
While the Obama administration has in the last few months made an admirable attempt to recognize that homosexuals and those of a sexual minority have rights too by reversing both DOMA and the Don’t Ask, Don’t Tell legislation, there is still a lot more to be done. While the end of DOMA is a good step forward, gay activists do have some criticism regarding how Obama went about winning the repeal. Activists including Choi say that the “the new stance would have been unequivocally historic if it were published in 2009 or 2010 as it could have then certainly fueled momentum for a full legislative repeal by a Democrat bicameral majority. It also would have saved many disappointments (including mine) if Obama and Holder used less rancid arguments about bestiality and gay inferiority in their incendiary DOJ DOMA briefs these past two years. Same goes for DADT appeals.” Yet, it is refreshing that at least the topic is finally deemed worthy of politicians’ attention, and it looks hopeful that this is just the beginning of more changes to come.
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