Thursday, February 24, 2011

Defense of Marriage Act No Longer Defensible

Here’s some very good news on the civil rights front:

President Obama, in a striking legal and political shift, has determined that the Defense of Marriage Act — the 1996 law that bars federal recognition of same-sex marriages — is unconstitutional, and has directed the Justice Department to stop defending the law in court, the administration said Wednesday.

Attorney General Eric H. Holder Jr. announced the decision in a letter to members of Congress. In it, he said the administration was taking the extraordinary step of refusing to defend the law, despite having done so during Mr. Obama’s first two years in the White House.

“The president and I have concluded that classifications based on sexual orientation” should be subjected to a strict legal test intended to block unfair discrimination, Mr. Holder wrote. As a result, he said, a crucial provision of the Defense of Marriage Act “is unconstitutional.”

This doesn’t mean that the law is no longer on the books; it just means that when it is challenged in federal court, as it has been on several occasions, the Justice Department will not defend it. This has major implications in going forward with the lawsuits.

Naturally the Republicans are incensed, accusing the White House of playing politics with the issue and using this news as a distraction from dealing with the economy. This from people who have so far spent their time reading the Constitution out loud, trying to pass bills that redefine what “forcible rape” is, using the budget cuts to strip away funding from Planned Parenthood, and repealing healthcare. Is that irony or chutzpah? I can’t tell anymore.

What gets me is that DOMA should be a nightmare to a true conservative. Talk about big government barging into the private lives of citizens; this law is that on crack. And it should be anathema to the Tenthers; DOMA is a classic case of the federal government sticking its nose into states’ rights and telling them who can and can’t get married in Massachusetts or Florida or what rights are transferable from one state to the next. If you think the healthcare law is unconstitutional, then why isn’t DOMA?

I understand why until now the Obama administration felt it had to defend the law in court. In the cold dry air of the law, the government has an obligation to defend the federal laws on the books whether they agree with them or not. But it’s become increasingly clear that in the years since the bill was passed that it is a rotten law that is little more than legalized gay-bashing. (Besides, we now have the immigrants and Muslims to beat up on.) There really is no justice in the Justice Department defending something that is indefensible.