It’s three years late, but the White House and the Department of Justice have finally concluded that the misnamed Defense of Marriage Act – which forbids the federal government from recognizing same-sex marriages performed in states where they are legal – is unconstitutional and discriminatory. The Attorney General recommended to the President, and President Obama agreed, that the government should not defend the act in court. Perhaps more significantly, they declared an intent to treat discrimination based on sexuality as a cause for “strict scrutiny,” a harsher test than the “rational review” test that had previously been applied.
I leave detailed analysis to legal experts, noting only that Congress may yet intervene on behalf of DOMA, and that the administration has not concluded that DOMA would be unconstitutional under a rational basis review, and would defend the act if courts demand that they defend it on that basis. This doesn’t mean DOMA is dead, but it deals it a crucial blow.
But I do appreciate the timing. This decision came the Wednesday after my sister-in-law married the woman of her dreams. It was a beautiful ceremony, bringing together wife’s fairly progressive family with the more conservative family of my sister-in-law-in-law. And despite the fact that California doesn’t currently recognize their marriage, that didn’t seem to matter to anyone. It was a wedding, a union of a loving couple and of the couple’s two families. It was beautiful. I was honored to have a chance to help support the chuppah during the ceremony, symbolically holding up their new household, and I was even happier to simply be present for that outpouring of love. And I’m glad that, just as Judge Walker ruled against Proposition 8 mere days before my own wedding last summer, my sister-in-law’s wedding would be followed so immediately by the federal government’s support for marriage equality.
And here’s why I say DOMA is misnamed. Regardless of whether the federal government choses to recognize their marriage, or even whether the state of California does, my new sisters are married, and any attempt to devalue their marriage also devalues mine. At this point, the only legal difference is that the State of New York gave me a piece of paper, while California won’t give them one. And because of that bureaucratic difference, the federal government grants me a thousand or so legal benefits that they don’t get. But our love and our commitment and our moral status is no different. In enacting this law, Congress didn’t defend marriage, it weakened it. And I look forward to the day where the law does not stand between my sister-in-law and her in-laws.
Image: Father of the bride Bob Martin spins my sister-in-law Lauren, his new daughter-in-law, on the dance floor, as his daughter Minda watches happily.