While President Obama campaigned on a pledge to repeal a noxious and divisive law called the Defense of Marriage Act, his Justice Department submitted a pro forma defense of the law earlier this summer. That upset many gay-rights activists, since DOMA, as it’s called, is nothing but a bit of homophobic nonsense.
Just last week, though, the Obama administration made clear that it’s still committed to getting rid of DOMA. (By longstanding tradition, Justice is obligated to defend laws when they draw legal challenge, a spokesman said.) Repealing it probably won’t be as controversial as some Democrats may fear.
The culture has changed considerably since 1996, when a few state legislatures were beginning to seriously debate the concept of extending full marriage equality to gays and lesbians. That’s when the GOP rushed to stoke its base of religious conservatives with a law that blocked that full equality. Where tradition (and law) had dictated that a marriage in New York or Hawaii must be recognized in Alabama or Wyoming, the Defense of Marriage Act allowed any state to deny the legitimacy of a same-sex marriage that had taken place elsewhere.
The bill’s sweeping prohibitions also deny to same-sex couples who work for the federal government shared insurance and other work-related benefits, all so that Congress could pose as the moral defender of traditional marriage. It was a strange pose, given that some of DOMA’s staunchest supporters were divorcees and adulterers.
The act was authored by then-Republican Congressman Bob Barr, who was doing a star turn representing the fringe. He was already on his third marriage. It was supported by such dutiful husbands as then- U.S. Rep. Mark Sanford, now governor of South Carolina, whose marriage is in tatters because his “soulmate” is not his wife.
Democrats jumped on board the hypocrisy train, too, for fear they might encounter a backlash from conservative Christians. The womanizing Bill Clinton signed the legislation, telling The Advocate, a gay-interest newspaper, that “I remain opposed to same-sex marriage. I believe marriage is an institution for the union of a man and a woman.”
Thirteen years later, Barr, now a Libertarian, has renounced his infamous legislation, saying it violates the principles of federalism. Clinton says he has no problems with same sex marriage, which six states either permit or will soon. (That period of homophobia did its damage, though. Twenty-eight states adopted amendments to their constitutions forbidding homosexual marriage.)
More pronounced still is the sweeping transformation in attitudes that has occured just in the last few years. While a slight majority (about 53 percent) of Americans still oppose gay marriage, a similar majority, about 54 percent, supports civil unions, according to the Pew Forum for Religion and Public Life. Civil unions would permit same-sex couples to enjoy many of the legal benefits of marriage.
And the resistance to allowing gays and lesbians traditional marriage will have all-but-disappeared in a generation or two if current trends continue. Roughly half of adults under the age of 30 support gay marriage.
That said, Republicans can be expected to grandstand, exaggerate and incite fear and loathing when Obama puts the repeal of DOMA at the top of his agenda. One thing they’re likely to say — since some conservatives have already made this claim — is that laws permitting gay marriage will intrude on religious freedom, forcing churches to perform same-sex marriages. That’s sheer and utter nonsense.
Marriage as a religious rite is quite separate from marriage as a civil institution. Every day, hundreds of couples show up at courthouses around the country and are married in civil ceremonies without any religious trappings. Gay couples ought to be permitted the same privilege, without restrictions imposed by federal law.