WASHINGTON (BP)–Thirteen years after the Defense of Marriage Act breezed through Congress with bipartisan support, a series of new federal lawsuits threatens to overturn the 1996 law and force the federal government — and perhaps every state — to recognize “gay marriage.”
The law may be obscure to many Americans but it’s at the heart of an ongoing cultural and legal battle over the future of “gay marriage” in America. And, while homosexual groups for years shied away from going to court over the matter out of fear of a negative Supreme Court ruling, they now believe they have momentum, and three lawsuits have been filed against the law in the past seven months — two of which have the full backing of the leading “gay marriage” groups. The state of Massachusetts filed one of them.
Complicating matters for the law’s supporters is the fact that the Obama administration — which opposes the Defense of Marriage Act — is in charge of defending it in federal court.
If any of the suits are successful, America would become the eighth country in the world not only to allow “gay marriages” in jurisdictions within its borders but also to recognize them.
Signed by President Clinton in 1996, the law has two parts: 1) it gives states the option not to recognize another state’s “gay marriages” and 2) it prevents the federal government from recognizing such relationships. It passed by margins of 84-15 in the Senate and 342-67 in the House at a time when no state recognized “gay marriage,” although Hawaii was threatening to do so. Since then, six states have legalized it.
“There’s obviously a desire on behalf of the homosexual activists to take down the federal definition of marriage because it stands in the way of their ultimate goal, which is to impose same-sex marriage on the entire country,” Brian Raum, an attorney with the Alliance Defense Fund, which opposes “gay marriage,” told Baptist Press. “As long as the federal government retains the definition of marriage between a man and a woman, there will forever be a reminder that they haven’t achieved their goal.”
Of the three suits, two target only the section of DOMA that prevents the federal government from recognizing “gay marriage.” The third suit seeks to strike down the law in its entirety. A brief summary of the suits:
— Massachusetts v. U.S. Department of Health and Human Services was filed in early July by Massachusetts Attorney General Martha Coakley, a Democrat, and seeks to strike Section 3 of DOMA, which prevents the federal government from recognizing “gay marriage,” and by extension, withholds federal benefits from same-sex couples. The suit says the law “interferes with the Commonwealth’s sovereign authority to define and regulate marriage” and “constitutes an overreaching and discriminatory federal law.”
— Gill et al. v. Office of Personnel Management was filed in March by Boston-based Gay & Lesbian Advocates & Defenders, the same legal organization that successfully sued for “gay marriage” legalization in Massachusetts and Connecticut. The suit seeks to strike Section 3 of DOMA. “This is a case about federal discrimination against gay and lesbian individuals married to someone of the same sex …,” the suit says.
— Smelt v. U.S. was filed in December by a California attorney on behalf of a same-sex couple that has a marriage license and it seeks to overturn the entire Defense of Marriage Act. It does not have the support of the major homosexual legal groups but, if successful, could lead to every state being forced to recognize “gay marriages” from other states, even if they have a constitutional marriage amendment. “The refusal of all states … to recognize the validity of Plaintiffs’ lawful marriage results in the denial of hundreds of state law rights, benefits and responsibilities,” the suit says.
The Massachusetts suit is the one that has homosexual activists perhaps most excited. Filed by the first state to legalize “gay marriage,” the suit makes a states’ rights argument — a core of conservative legal principle — and has the state’s financial resources at its disposal. Emma Ruby-Sachs, an attorney who writes for the liberal blog HuffingtonPost.com, wrote that the “genius” of the suit is that it “takes a conservative argument” and “turns it around to benefit a state that really pioneered gay rights in the U.S.” At a press conference Coakley, the state’s attorney general, said the suit was an “important step” toward “maintaining our authority as a sovereign state.”
Raum, though, called the states’ rights argument “absurd.”
“Federal DOMA was intended to give states the ability to fashion their own marriage laws, but it certainly doesn’t give states the right to dictate to the federal government what will and will not be recognized as a marriage,” he said. “The federal government at that time made it perfectly clear that for all purposes under federal law marriage would remain between a man and a woman. Massachusetts passed same-sex marriage knowing that, and they should have to live with it.”
The Justice Department filed its response to the Smelt case in June — a legal brief that defended DOMA as constitutional and was widely criticized by liberals as making conservative arguments. It remains to be seen whether the department will put forth such a strong defense of DOMA in the other two suits.
Despite what some would argue, Raum says he believes “gay marriage” is not inevitable in the U.S.
“If you look at 30 states that have passed constitutional amendments,” he said, “and the other states that have strong marriage laws and the federal law that’s reflected in DOMA, it’s clear that the American people do not support same-sex marriage and that ultimately those who do support same-sex marriage will not prevail universally on this. … [W]e’re confident that DOMA will be upheld.”
Unrelated to the Defense of Marriage Act suits is another federal case filed by high-profile attorneys Ted Olson and David Boies against Proposition 8, California’s constitutional amendment that bans “gay marriage.” That suit does not target DOMA.
Michael Foust is an assistant editor of Baptist Press. To read how “gay marriage” impacts parental rights and religious freedom click here.