The Justice Department and Gay Marriage

If you know me, you would probably never expect me to speak out defending the federal government when it defends itself for discriminating against gays and lesbians, but that's what I'm about to do.

A recent article in the Advocate, a GLBT news magazine criticizes the Justice Department for defending the "Defense of Marriage Act" (DOMA), which defines marriage on the federal level as between a man and a woman. Gay rights activists see this as betrayal. This is overly dramatic, but may just be a good rhetorical tool for calling attention to inequality. Although I would consider myself to be a gay rights activist, too, and I also vehemently oppose the DOMA for some very personal reasons (it's blocking my boyfriend and myself from being able to move to the States, as he can't get a green card for the States yet), this is not really a betrayal.

Activists point out that Obama claimed to be against the DOMA. But this position is reiterated in the brief from the Justice Department. However, whatever Obama would like, it is up to Congress to change the law by passing a bill, which he would then presumably sign into law, overturning the DOMA. In the meantime, it is only natural that the Justice Department would defend the DOMA: that's its job. It's part of the executive, which means it is charged with enforcing laws, not interpreting them or deciding if they are fair or constitutional (that would be the courts' job) or deciding if they should be replaced by other laws or changed in some way (that's the job of the legislature, in this case Congress). Furthermore, it is right that there is currently no federal legal precedent that would in any way suggest that the DOMA is unconstitutional (unfortunately). It is possible that the Supreme Court would simply decide otherwise, but it is unlikely to even hear the case, choosing to leave the can of worms closed. Again, this is a legislative issue, not an executive or even judicial one.

That said, if this is a rhetorical weapon, it may just work. I think Obama will now know we're watching. More importantly: Congress will know this, too. They are the ones that must make the first move. The move would be very controversial, and tantamount to allowing gay marriage throughout the 50 states. Though they would not all have to allow same-sex marriages to be performed in their own states, federal recognition would mean they would all have to recognize marriages performed elsewhere. There are many constituents in conservative states, even ones who vote democratic, who would not be happy about this. It would be a risky move. It is therefore unsurprising that Congress is taking its time.

In the end, of course, I hope they find the courage to do the right thing and get rid of the DOMA, but it's going to be a BIG deal if they do. In the meantime, neither the Department of Justice nor Obama himself have proved themselves to be traitors. If you want to bark up the right tree, call your state senators and representatives and tell them to get on it!


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