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DOMA: 5 questions & answers

WASHINGTON (BP)–The leadership in the House of Representatives voted March 9 to step in and defend the Defense of Marriage Act in light of President Obama’s decision not to do so. Following are five commonly asked questions, and answers, about the law:

— What is the Defense of Marriage Act?

Signed into law in 1996, “DOMA,” as it is called, does two things: 1) it defines in federal law marriage as being between one man and one woman, thus preventing federal recognition of “gay marriage,” and 2) it gives states the option not to recognize another state’s “gay marriages.” It was passed by wide bipartisan margins — 84-15 in the Senate and 342-67 in the House — and signed by President Clinton. Clinton now opposes it, although it still seemingly has bipartisan support in both chambers of Congress.

— Why was it passed?

At the time of its passage, Hawaii’s Supreme Court appeared on the verge of legalizing “gay marriage,” and legislators in D.C. didn’t want the state to redefine marriage for the rest of the country. After DOMA passed, a majority of states — including Hawaii — passed laws or constitutional amendments defining marriage as between one man and one woman. Twenty-nine states have adopted constitutional amendments, which are the strongest state-level protection against state court rulings. Only five states recognize “gay marriage.”

— What did the Obama administration do?

President Obama ordered the Department of Justice to stop defending the law in federal court, saying he believes it is unconstitutional and that “sexual orientation” — a classification that includes homosexuality — should be viewed in court cases in the same manner as race. Most courts have rejected such an argument. But Obama said he believes DOMA should be held to a high legal standard known as “heightened scrutiny,” a concept in which laws are viewed skeptically and upheld only if there is a compelling reason to do so. By contrast, DOMA supporters argue it should be held to a “rational basis” test, a legal concept in which a law is upheld as long as there is a “rational” reason behind it. The current lawsuits target only one part of DOMA — the section dealing with the federal definition of marriage (often called DOMA Section 3). Obama, though, made clear he opposes the entire law.

— What happens if DOMA is overturned?

If the current lawsuits are successful and the Supreme Court overturns DOMA Section 3, then the federal government would be forced to recognize the “gay marriages” of such states as Massachusetts and to grant federal legal benefits to same-sex couples. Such a ruling would have far-reaching consequences, particularly if the court rules that pro-traditional marriage laws are subject to a “heightened scrutiny” critique — a concept normally reserved for laws based on race and sex. “If that legal standard takes hold, it would affect all” traditional marriage laws, Mary Bonauto, an attorney for the homosexual legal group GLAD, told The Los Angeles Times. GLAD’s strategy, the Times said, is to have Section 3 declared illegal, and then to take aim at the rest of DOMA, as well as state laws and constitutional amendments that define marriage in the traditional sense.

— How does the House of Representatives’ involvement impact the case?

With Obama choosing not to defend DOMA and without House intervention, the law almost certainly would have been overturned by higher courts, simply because it had no defender. The House of Representatives’ involvement gets DOMA’s supporters back on track, and — some believe — even improves their chances of winning. Why? Because the Department of Justice, even when it defended the law, had refused to use what DOMA supporters say are the best arguments for DOMA. For instance, in passing DOMA in 1996, the House of Representatives noted that the law was needed to encourage responsible procreation and mother-father homes. Some state courts have cited those reasons in refusing to legalize “gay marriage.” The Justice Department, though — facing opposition from homosexual groups — refused to use those arguments. The Department of Justice also refused to cite the one case where the U.S. Supreme Court dealt with “gay marriage” — Baker v. Nelson (1972). In that case, the high court dismissed a challenge to Minnesota’s marriage laws, saying no federal question was involved. Until 2010, nearly every federal court had upheld DOMA. No federal appeals court has ever ruled against the law.
Michael Foust is associate editor of Baptist Press.

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  • Michael Foust