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What is DOMA?
by Ed Mullen, Executive Director of Equality Ohio
The United States Department of Justice is charged with defending the constitutionality of federal laws. But on February 23, 2011, Attorney General Eric Holder issued a memorandum concluding that Section 3 of DOMA is not constitutional, and as such, President Barack Obama instructed the Justice Department to cease defending it.
After the Justice Department decided not to defend the constitutionality of Section 3 of DOMA, the leadership of the House of Representatives (led by Ohioan Speaker of the House John Boehner) decided that the House would take on defending Section 3 of DOMA, and it has hired a private attorney to do so. The trial court’s decision that Section 3 of DOMA is unconstitutional is now on appeal in the federal circuit court of appeals. Any ruling may be appealed to the U.S. Supreme Court, but the Court has discretion whether or not to hear the case. Traditionally, the Court waits until various federal appeals courts have ruled on an issue differently (known as a Circuit split) to take a case. Therefore, the Supreme Court may not resolve this issue for many years.
While the issue of the constitutionality of Section 3 is being litigated actively across the country, cases challenging the constitutionality of Section 2 have not been as successful. Several of these cases were not decided on the merits of the issue; rather, courts have either not addressed the issue in their ruling or found that the party challenging Section 2 did not have the legal standing to do so. Accordingly, it does not appear that Section 2 of DOMA will be overturned in the near future.
Also of interest is a lawsuit in California relating to Proposition 8, which amended the California Constitution to take away the right to marry in California.
Perry v. Schwarzenegger. In that case, a federal trial court in California ruled that Proposition 8 was unconstitutional because it violated equal protection and due process provisions of the U.S. Constitution. The Judge wrote: “Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed the evidence shows Proposition 8 does nothing more than enshrine in the California constitution the notion that opposite sex couples are superior to same sex couples.” This case is on appeal and will likely reach the U.S. Supreme Court within the next several years. Although this case does not directly address DOMA, if the Court finds that marriage discrimination violates equal protection and due process, it is difficult to see how DOMA could be found constitutional.
In addition to litigation developments, bills have been introduced in both the U.S. House and Senate to repeal DOMA. President Obama has indicated that he does not support DOMA, so it is likely he would sign such a bill if it passed. However, it is unlikely that a repeal bill will pass through the House, which has proven to be very conservative on social issues.
Read about OHIO DOMA here
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