Five Things You Should Know About Obama and DOMA
On Feb. 23, President Obama announced that he believes that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional. This is the section that defines marriage as between a man and a woman. Obama instructed Attorney General Eric Holder and the Justice Department not to defend lawsuits that challenge the 1996 law forbidding the government from recognizing same-sex marriage.
What exactly does that mean to gays and lesbians in Kansas and Missouri?
1. Obama only opined on Section 3 of DOMA, which defines how the federal government defines marriage. Section 2 still allows states to refuse to recognize same-sex marriages performed in other jurisdictions. As a result, even if Section 3 is declared unconstitutional, that does not mean that Kansas and Missouri must recognize same-sex marriage.
2. Obama’s recognition that DOMA is unconstitutional is certainly a morale-booster for the LGBT community, but his announcement will not have a short-term, practical impact on same-sex couples. The President cannot repeal a law unless Congress votes to do so. And although Congress could vote to repeal DOMA, it’s more likely that the constitutionality of the law will be decided by the federal courts – and ultimately by the U.S. Supreme Court.
3. The Justice Department is charged with the responsibility of defending laws passed by Congress. The President has very rarely decided that the Justice Department will not defend an existing federal law. In those rare circumstances, Congress can step in and have its lawyers defend the DOMA in court. Some lawmakers will surely do that. In many ways, Obama’s decision is similar to what Gov. Arnold Schwarzenegger and Attorney General Jerry Brown did in California when they decided to give up defending Proposition 8 in court. That decision, like Obama’s decision, did not end the litigation.
4. Until the issue is finally resolved in the courts, the Obama administration will still enforce Section 3 of DOMA (even though it won’t defend it in lawsuits). So, for now, things will stay pretty much the same for same-sex couples, whether or not legally married.
5. Obama has played a major role in our long march down the aisle on issues such as the Matthew Shepard Act, Employment Non-Discrimination Act, and the repeal of Don’t Ask, Don’t Tell. But has he graduated from manning the guest book to being our best man? Not quite.
A few months ago, Obama said that his position on same-sex marriage is “evolving.” After the DOMA announcement, Obama’s press secretary emphasized a distinction between the legal decision and Obama’s personal view that he favors civil unions over marriage for same-sex couples. That means Obama has not quite said “I do” when it comes to same-sex marriage. Although we are appreciative of all that Obama has done, we say it’s time he puts a ring on it.
Lana Knedlik and Lisa Brunner are Kansas City attorneys, board members of the KC Legal bar association and guests on “The Tenth Voice” radio magazine’s monthly legal discussion, which airs at 1 p.m. every second Saturday on 90.1 FM (KKFI).