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Wednesday, February 2, 2011

Will DOMA Suits Force Obama to Take Decisive Action?

By Kilian Melloy -

President Obama may soon have to declare himself in deed as well as soothing rhetoric on the topic of the anti-gay federal law known as the "Defense of Marriage" Act (DOMA), a Jan. 28 New York Times article speculates.

Noting that "President Obama has balanced on a political tightrope for two years over the Defense of Marriage Act," the article reported on how two federal lawsuits against the 1996 law may require more than carefully calculated speech from the president.

The cases are legally complex, the article noted. Because of where they were filed, the appeals court handling the suits has no precedent to rely on in formulating a judgment. That has the potential to place Obama in a politically sticky spot: strongly indicating a definite stance about how to handle the needs of the GLBT community--and even, in effect, making a statement about who and what gays are. It could be impossible to strike the measured political tone for which Obama is noted, reassuring GLBT and equality-minded straight supporters with words about acceptance while not alienating those skeptical about recognition for same-sex families by taking actions that could be seen as embracing gay marriage.

As a candidate, Obama said both that he wants to see DOMA abolished, and that he believes marriage should be a special right reserved exclusively for heterosexual couples. More recently, the president told the press that his attitude toward marriage equality has been "evolving," prompting speculation that Obama may be preparing the ground for a major push for gay and lesbian family equality in time for the 2012 elections.

But being prematurely forced into direct action on DOMA either way could affect any delicate political calculus that might be in play.

"Now they are being asked what they think the law should be, and not merely how to apply the law as it exists," Cornell University’s Michael Dorf, a professor of law, told the New York Times. "There is much less room to hide for that decision."

Obama’s justice department has followed the tradition of upholding existing law, to the displeasure of some in the GLBT community. But in at least one instance, the president’s careful middle-of-the-road course seems to have reached the mark: much as he has spoken in favor of recognizing same-sex couples in some capacity, Obama also had championed the cause of GLBT patriots and called for the end of "Don’t Ask, Don’t Tell"--though taking little in the way of direct action to end it, saying that he would rather Congress abolish the anti-gay law. Late last year, that’s what happened.

With a March 11 deadline for a government response on the lawsuits, the Obama administration hasn’t got a lot of time to work out its ideal solution. As with DADT, Obama has said that he would rather see Congress--rather than the courts--rid the lawbooks of the 1996 measure, which targets same-sex families for specific exclusion from any form of federal recognition.

"I have a whole bunch of really smart lawyers who are looking at a whole range of options," Obama told the media. "I’m always looking for a way to get it done, if possible, through our elected representatives. That may not be possible."

It also may not be possible to forestall a firestorm from whichever side of the debate disagrees with whatever tack the president might decide to take. Though public opinion increasingly favors granting gay and lesbian couples full legal recognition and equality, religious conservatives, many in the mainstream, and even some GLBTs are opposed to the idea.

If the Obama administration does not vigorously defend the law as it stands, marriage equality opponents are likely to use the issue to ignite a firestorm to play up the issue, raise funds, and field political candidates. If such a defense is deployed, however, GLBT and equality-minded straight supporters may refuse to support Democrats, who already took a beating in last year’s midterm elections.

Even more nuanced factors are at work in the situation. Explained The New York Times, "Courts give a class [a certain level of protection] if it has been unfairly stigmatized and if its members cannot choose to leave the class, among other factors. By those standards, it could be awkward, especially for a Democratic administration, to proclaim that gay people do not qualify for it."

Opponents of GLBT equality--especially religious foes--claim that homosexuality is a matter of "choice," and say that willing gays can be "cured" or "converted" from homosexuality with counseling and prayer. Mental health experts disagree, and caution against any such so-called "reparative therapy."

The question of whether gays constitute a genuine class of people--as obvious to gays as it is--and how much protection or exclusion they may warrant has not been clarified legally in terms sufficient to end all forms of legal discrimination against them. Indeed, anti-gay groups declare that gays should not be granted any protections at all, calling such legal remedies a matter of "special rights."

This may be the essential dilemma into which the Obama administration finds itself thrown. If the administration advocates for a "hard test" in the question--in which an oppressed group is required to prove that it really is a definite class of people due to immutable characteristics--then it may lend credence to the claim that gays "choose" to be sexually and romantically attracted to others of the same gender. That could conceivably undermine not only equal rights for gays, but efforts to eradicate laws that undercut and curtail those rights.

But if the administration calls for an "easy test," in which a class is automatically accepted as legitimate, opening the way to addressing claims of unfair treatment under the law, anti-gay groups--including religions opposed to gay equality and who promote the idea that sexuality can readily be changed through conscious will--are sure to become galvanized, In the past the issue has proved a sure-fire means of sparking membership participation (and financial support) around the cause of denying full legal equality to gay and lesbian families.

The suits say that DOMA’s singling out of sexual minorities for unequal treatment by the federal government is a violation of Constitutional guarantees. Already, Massachusetts judge Joseph Tauro has declared DOMA in violation of the Constitution.

A lawyer with the American Civil Liberties Union involved with one of the suits, James Esseks, told the New York Times, "We think there is only one answer the government and the court can come to if they apply the test conscientiously, and that is that the government must have to prove why it needs to treat gay people differently. And if the government has to have a real reason, as opposed to a made-up reason, we don’t think there is any way that the government wins."

Kilian Melloy reviews media, conducts interviews, and writes commentary for EDGEBoston, where he also serves as Assistant Arts Editor.


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