October 14, 2011
Prior to the passage of the Defense of Marriage Act (DOMA) in 1996, the federal government had taken a hands-off approach to family status, allowing each state to set its own definitions of marriage and of those who are entitled to the rights that marriage affords. So why did the federal government upset what had been the status quo for 230 years? The answer, according to Mary Bonauto, the Civil Rights Project Director at Gay & Lesbian Advocates & Defenders (GLAD), is that the federal government changed its approach to family status for all the wrong reasons.
At “Challenging and Litigating DOMA's Constitutionality”— an event that was co-sponsored by the Harvard Law School American Constitution Society, Lambda, and the Civil Rights-Civil Liberties Law Journal—Bonauto spoke about litigating DOMA in federal courts in the wake of the Department of Justice's recent decision to stop defending the law. One of the reasons behind DOMA’s enactment and behind the government’s hands-on approach to family status, said Bonauto, was to express moral approbation.
DOMA defines marriage as a legal union between one man and one woman, and has two main provisions. Under Section 2, no state may be required to recognize as a marriage a same-sex relationship considered a marriage in another state. Section 3 prevents the federal government from recognizing the validity of same-sex marriages. Under Bonauto’s leadership, GLAD is challenging the constitutionality of Section 3 in two federal cases on behalf of married couples and widowers: Pedersen v. O.P.M. and Gill v. O.P.M. The legal basis of both cases is that DOMA Section 3 violates the equal protection clause of the 5th Amendment to the Constitution.
“Since Massachusetts recognizes same-sex marriages, there is one class of married couples – you’re simply married or you’re not. But DOMA comes in and divides that class. Under DOMA, most married people in Massachusetts have federal protections, rights and responsibilities, but another tiny group doesn’t,” Bonauto said.
When President Obama decided that the federal government would no longer defend the constitutionality of DOMA, the House filed a motion to be allowed to intervene in the suits challenging DOMA in order to defend the constitutionality of Section 3. Bonauto laid out some of the arguments that the House has made in favor of the constitutionality of DOMA, and discussed GLAD’s response. She encouraged students to read the briefs that the government has filed regarding its decision not to defend DOMA in Pedersen and in Windsor v. United States.
“These briefs are important because the Department of Justice has switched sides. They say that Section 3 unconstitutionally discriminates,” she said. “My mouth fell open when I saw that in a brief from the United States government. They spent eight pages talking about their own regrettable role in the history of discrimination against gay people in this country. It’s incredible. It’s the closest we’ve ever had to an apology.”
And yet, during a question and answer session, she cautioned students about the dangers of over-litigating, underscoring the importance of not alienating those who don’t feel as strongly about the issue. She said that often when there is the opportunity to sue, there is also an opportunity to instead engage in meaningful dialogue. Bonauto also predicted that an end to formal inequality is on the horizon – perhaps within 15 years.
“There are things that lengthen that period. One is unfavorable litigation outcomes. Another is that people are fed up,” she said, but added that there is more to the fight than litigation and legislation. “We are in a battle for the American people and their hearts and their minds, because the only change that is lasting is change that people think is right and good.”