Defense of Marriage Act: Will it go the way of 'don't ask, don't tell'?

All three branches of the federal government are now fully engaged in an escalating battle over the future of same-sex marriage in the US.

Three weeks ago President Obama urged Congress to repeal the federal Defense of Marriage Act (DOMA) after concluding that the law is unconstitutional. In response, more than 100 members of the House of Representative on Wednesday introduced a bill to repeal the 1996 ban on federal recognition of same-sex marriage.

A similar measure was introduced Wednesday in the Senate by Dianne Feinstein (D) of California and 18 cosponsors.

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“The time has come for the federal government to recognize that every American family deserves all of the legal protections afforded to couples who are married under state law,” said Sen. Patrick Leahy (D) of Vermont. “This is a question of basic civil rights.”

While the previous Congress voted to repeal the military’s “don’t ask, don’t tell” policy banning gay men and women from serving openly, the current Congress is unlikely to do the same with DOMA. But that didn’t dampen the enthusiasm of repeal advocates.

“The time for dumping DOMA is long overdue, and rather than prolonging litigation in the courts, Congress should act to repeal this ugly law,” Rep. Jerrold Nadler (D) of New York said in announcing the proposed Respect for Marriage Act.

In addition to repealing DOMA, the new law would ensure that same-sex couples married under state laws would qualify for the same level of federal benefits available to heterosexual married couples.

Republicans mount a defense

The repeal campaign comes in sharp contrast to the efforts of the Republican leadership in the House. Last week, Speaker John Boehner said that in light of the president’s conclusion that DOMA was unconstitutional he would direct the House counsel to undertake the legal defense of the law and replace Justice Department lawyers in pending federal court challenges.

“This action by the House will ensure that this law’s constitutionality is decided by the courts, rather than by the president unilaterally,” Boehner said at the time.

There are an estimated 10 legal challenges to DOMA currently pending in the federal courts. Chief among them are three consolidated cases in Boston in which a federal judge ruled the measure unconstitutional last year. Those cases are now on appeal before the First US Circuit Court of Appeals, also in Boston.

Two other cases were filed in Connecticut and New York. It is those two cases that prompted a reassessment of the Obama administration’s defense of DOMA.

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