Republican leaders in Congress are furious with President Obama over his decision to stop defending the so-called Defense of Marriage Act, angrily accusing the president of playing politics to satisfy an important Democratic constituency — gay rights activists. For once, I agree with the GOP: Obama is playing politics.
Here’s the rub: The Defense of Marriage Act was a blatantly political ploy when Republicans shoved it through Congress in 1996 — a shameless measure meant to whip up social conservatives during Clinton’s re-election campaign. The legislation also had the effect of forcing Clinton to take a position on the issue. After he had infuriated the military with his attempt to allow gays to serve openly, he didn’t dare veto it. He signed it into law. The national GOP put a plank endorsing DOMA into its platform.
The intervening years were filled with vicious gay-baiting, when Karl Rove and his conservative allies introduced anti-gay-marriage amendments to state constitutions around the country. Those amendments helped boost George W. Bush’s re-election in 2004 because they drove rightwingers to the polls.
Though Obama campaigned on broadening rights for gays and lesbians — he promised to abolish “don’t ask,” and he has — he has had a more complicated position on gay marriage. He said he supported civil unions, but he opposed marriage for same-sex couples.
As a constitutional lawyer, the president should have known better. As citizens, gays are entitled to the same rights that straight couples have, including the right to a civil marriage at a courthouse. (Under the First Amendment, churches can do what they please. They don’t have to perform gay wedding rites if they choose not to.)
Finally, Obama and his Justice Department have conceded that one portion of DOMA — Section Three — is blatantly unconstitutional. From the administration’s press release:
Much of the legal landscape has changed in the 15 years since Congress passed DOMA. The Supreme Court has ruled that laws criminalizing homosexual conduct are unconstitutional. Congress has repealed the military’s Don’t Ask, Don’t Tell policy. Several lower courts have ruled DOMA itself to be unconstitutional. Section 3 of DOMA will continue to remain in effect unless Congress repeals it or there is a final judicial finding that strikes it down, and the President has informed me that the Executive Branch will continue to enforce the law. But while both the wisdom and the legality of Section 3 of DOMA will continue to be the subject of both extensive litigation and public debate, this Administration will no longer assert its constitutionality in court.
DOMA may still prevail under a Supreme Court that has moved steadily rightward in recent years. But it shouldn’t.
— Cynthia Tucker