Defending the Indefensible in the Defense of Marriage Act

The Defense of Marriage Act, passed in 1996 by large bipartisan majorities of both houses of Congress and signed into law by President Bill Clinton, requires the federal government to discriminate against same-sex couples.

Last week, the Obama administration said it will continue to enforce the law of the land by denying to legally married same-sex couples federal benefits that are available to legally married heterosexual couples.

But it no longer will go into federal courts and pretend that the law is constitutional.

This is progress, of a strange and halting sort.

Attorney General Eric Holder said Wednesday that for the government to separate Americans into different categories based on sexual orientation and treat them unequally under the law, it must have especially good reasons to so.

A recent legal review failed to find any such reasons when it comes to DOMA, he said. Therefore, it violates the equal protection and due process guarantees of the Constitution.

In the narrowest sense, the decision applies only to constitutional challenges in federal courts in the Second Circuit: New York, Connecticut and Vermont. Courts there have not yet determined how high a standard of justification the law must meet.

As such, the administration's action is unlikely to have much immediate impact.

No DOMA challenges have emerged yet in the Eighth Circuit, which includes Missouri, or the Seventh Circuit, which includes Illinois.

Some legal scholars have pointed out, however, that when any administration publicly disavows a law's constitutionality, federal judges take notice. DOMA's fate may well be determined by the U.S. Supreme Court.

According to the National Conference of State Legislatures, 27 states limit, by law or constitutional amendment, the definition of marriage to a legal union between a man and a woman.

Illinois law likewise circumscribes its definition of marriage, although last month Illinois also joined several other states in granting spousal rights to same-sex partners in civil unions.

It has been 15 years since DOMA became law, and many people still hold profound, sincere moral objections to homosexuality. But as more and more of us have come to know — or know better — the gay and lesbian Americans who are our neighbors, co-workers, friends and family members, the more we must reject using anyone's moral beliefs to deny anyone else equal treatment under the law.

What the Obama administration acknowledged last week is that, under the American system of justice, the discrimination at the heart of the Defense of Marriage Act has become indefensible.

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