DOMA Series, Part 2: Obama Spoke, Now What?

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By Kate Paine, Esq.

It was an exciting moment for those seeking marriage equality for same-sex couples when, on May 9, 2012, President Barack Obama announced that he believes same-sex couples should be able to marry. Although the President’s evolved stance on same-sex marriage is indeed an extraordinary symbolic victory for marriage equality, at the moment, his views unfortunately have no direct legal effect on the issue of same-sex marriage (apart from essentially guaranteeing that the President will sign a congressional bill repealing DOMA, should one make its way to his desk).

The President’s statement came only one day after North Carolina voters approved a state constitutional amendment banning same-sex marriage. This highlights the fact that, even if Congress were to enact (and the President to sign into law) a bill repealing Section 3 of the federal Defense of Marriage Act (the provision limiting marriage for federal purposes to those unions between one man and one woman), this would serve only to afford same-sex couples legally married in a state or in another country equal treatment under federal laws that condition rights and responsibilities on marital status; it would have no effect on a state’s ability to define marriage for its own citizens. And, in fact, the large majority of states have enacted their own version of DOMA or passed a constitutional amendment banning same-sex marriage. As was the case with marriage between blacks and whites forty-five years ago, only a declaration by the United States Supreme Court that laws and constitutional amendments forbidding same-sex marriage violates the United States Constitution will ensure that every person can legally marry an individual of the same sex and have that marriage recognized by both the federal government and other state governments.

For this reason, more significant than the President openly supporting same-sex marriage is the fact that, last February, the United States Attorney General (the chief lawyer for the U.S. government) sent a letter to the members of Congress informing them President Obama had determined that Section 3 of DOMA violates the equal protection component of the Fifth Amendment, as applied to legally married same-sex couples. (Read the letter here.) What this means, exactly, is precisely where tomorrow’s post will pick up.

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