The Obama Justice Department has requested that a Boston federal court dismiss a lawsuit seeking to challenge the federal Defense of Marriage Act (DOMA). While acknowledging that DOMA discriminates against gay couples, the administration argues that it is also "constitutionally permissible." This is the second time the Department has vigorously defended DOMA in court, intensifying concerns amongst gay activists about the seriousness of the administration's commitment to gay rights.
Seven gay couples and three widowers from gay marriages filed suit against the federal government after legally marrying in Massachusetts. Their suit claims that DOMA violates the constitution's promise of equal protection under the law. DOMA is a 1996 law preventing any branch of the federal government from treating as equivalent to marriage anything other than the union of a man and a woman. In other words, no gay marriages, and no civil unions, will be afforded the rights of heterosexual marriages within the federal government's field of influence. DOMA prevents joint filing of tax returns, claims of legal immigration status, and access for gay partners of government employees to benefits such as pensions and health insurance.
DOMA was created as a defensive measure when Hawaii looked poised to be the first state to legalize gay marriage; Congress wanted to prevent other states from being forced to recognize those unions. But in fact, Massachusetts was the first state to legalize gay marriage, followed by five other states (none of them Hawaii). Now the gay couples married there are prepared to say that the absence of federal marriage benefits is costing them—literally. One pair of plaintiffs in the lawsuit, Beatrice Hernandez and Melba Abreu, claim that the fact that they cannot file a joint tax return cost them an additional $20,000 over three years of their five-year marriage. "It really is separate and unequal treatment," Hernandez told the AP. "When we were able to marry in 2004, we didn't receive a different marriage certificate. We received one that was equal for all citizens here in Massachusetts."
In principle, the Justice Department says that it agrees that DOMA is discriminatory toward couples like Hernandez and Abreu. But, their court documents argue, Congress can take a wait-and-see approach toward new forms of marriage, since there is no fundamental constitutional right to the material benefits of marriage. "Congress is therefore permitted to provide benefits only to those who have historically been permitted to marry," the filing says, "without extending the same benefit to those only recently permitted to do so." In their own logic, however, there seems to be an undefined expiration date on the viability of this policy: "Congress may subsequently decide to extend federal benefits to same-sex marriages, and this Administration believes that Congress should do so. But its decision not to do so to this point is not irrational or unconstitutional."
It is the practice of the Justice Department to defend the laws on the books, regardless of the opinion of the President and his administration. Earlier this year, they offered a similar defense of DOMA in the face of equal protection-based legal challenges in California. Yet this kind of legal reasoning begs the question: if not now, when? Precisely how much discrimination is the government's legal arm prepared to tolerate, and even defend? And at what point will the administration be forced to acknowledge that rights that are not equal are not actually rights—they are privileges unfairly granted to some and withheld from others?