Many of my colleagues are referring to the recent announcement by President Obama and Attorney General Holder as the “tipping point” in the lifting of the federal ban on recognition of marriages of lesbian or gay male couples. The announcement was direct and powerful: President Obama has determined that the key element of DOMA (Defense of Marriage Act) is unconstitutional, and therefore he has ordered the Justice Department to cease defending it in court.
Over the last few years Obama has tried to stay “on the fence,” saying he opposed DOMA politically but would continue to defend it legally, until Congress chose to repeal it. Now, he is jumping off the fence, on to the right side of the debate. He is also going out on a fairly dramatic political limb, by instructing the Justice Department to act according to these principles.
There are two dimensions to this policy shift. On the technical legal side, the government is withdrawing its appeal of several trial court decisions that ruled that DOMA was unconstitutional. Individual members of Congress probably will hire private lawyers to defend the appeals, but with the President weighing in on the side of the opponents and the government no longer officially defending the law, there is a very high probability that the appeals will be defeated. It may take a year or two for this drama to play out, but there is a far greater likelihood now that DOMA will be judicially overturned.
But perhaps of great importance is the change in the political and social policy atmosphere. For the President to take this stand is to say to the political mainstream, the times they are a-changing. And we are already seeing how the tide of change is flowing. Hawaii’s governor has signed their domestic partnership law, which will extend marriage benefits to same-sex couples as of January of next year. The Maryland Senate passed a marriage equality bill, and there is a decent chance the other house of government will pass it — and the governor has said he would sign it. And, just this week, the influential Senator Dianne Feinstein from California has introduced legislation to repeal DOMA, parallel to similar legislation launched in the House of Representatives. As with the repeal of “don’t ask don’t tell,” a strong sense that the courts are going to impose this change may turn the tide in Congress in advance of such a ruling.
It will still be several years before the legal ramifications are sorted out, especially as the repeal of federal non-recognition will still leave couples in the dozens of non-recognition states in legal limbo. But the light at the end of this long tunnel has grown significantly brighter this week.