Q&A: The Defense of Marriage Act
Q: What is the Defense of Marriage Act?
A: The act was passed by Congress and signed into law by President Clinton in 1996 amid concerns that the federal government would be forced to honor legal same-sex marriages in some states. Under Section 2 of the act, states that have not legalized same-sex marriage are not required to recognize gay and lesbian marriages in states that have. Section 3 defines marriage as solely between a man and woman.
Both the George W. Bush administration and the Obama administration have defended the act in court. It has been common practice for the Justice Department to defend laws passed by Congress even if the administration disagrees with them.
Q: What does the Obama administration’s action Wednesday mean?
A: Atty. Gen. Eric H. Holder Jr. announced that after a legal analysis, the Justice Department determined that Section 3 is unconstitutional because it treats people differently on the basis of their sexual orientation without a significant reason for doing so. The decision came as the department was to defend the law in two cases in the federal appeals court in New York.
In one of the cases, Windsor vs. United States, Edith Windsor, who married Thea Spyer in Canada in 2007, saw her inheritance from Spyer taxed by the federal government as if she were simply her partner rather than a spouse.
Q: Does the Justice Department’s action end Windsor’s case?
A: No. The administration said it would continue to enforce the Defense of Marriage Act while its constitutionality remains an issue in the court. The government is making the distinction between determining whether a law is valid (the role of a court) and enforcing it. Besides tax issues, the act often comes into play in cases involving benefits and immigration status. The Justice Department’s view that Section 3 of the law is unconstitutional should be read as a recommendation to federal courts that the section should be struck down.
Q: Does the Justice Department’s decision legalize gay marriage in any state where it currently isn’t legal?
A: No. States are still free to craft any legislative approach they wish to marriage, although supporters of same-sex marriage rights will certainly point to the Obama administration’s views as support for their position.
Q: What can congressional supporters of the Defense of Marriage Act do to protect the law?
A: They may hire their own lawyer and intervene to defend the act in court.
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