The countdown is running: 11 more important decisions are expected to be announced this week by the US Supreme Court, before its summer break. Two of them are anxiously awaited by the American LGBT community, and their foreign partners: a decision on Proposition 8 and the DOMA could be announced in about 30 minutes.
What DOMA is about
DOMA (the so called Defense of Marriage Act), enacted during the Clinton administration in September 1996, is a United States federal law that restricts federal marriage benefits and required inter-state marriage recognition to only opposite-sex marriages in the United States. The result is broad-scale discrimination of gay couples in the field of tax equality, immigration rights etc. In fact, to date, there are 1,138 statutory provisions in which marital status is a factor in determining benefits, rights, and privileges.
Back in 1996, the law passed both houses of Congress with big majorities. However, luckily much has changed since then (check out the current state of marriage equality), not only in the States but at global level. Pop-culture, a strong world-wide gay rights movement and lots of support by straight allies have done an incredible job in furthering tolerance vis-a-vis gays.
But, yes, unfortunately, there are also governments, such as Putin’s, which exert extra efforts to reverse this trend heading straight back to the Middle Ages. Earlier this month, the Russian Duma passed a highly discriminatory law banning so-called ‘gay propaganda’.
Advocacy to repeal DOMA
In the US, notably Bill Clinton, who signed DOMA into law in the mid-nineties, has now become one of the advocates to repeal DOMA. As former President Clinton acknowledges, Hillary and Chelsea seemed to have played a role in this development. He gave an emotional speech on the issue earlier this year.
Equally, the Obama administration announced in 2011 that in its view section 3 of the DOMA – defining marriage as ‘only a legal union between one man and one woman as husband and wife‘ – was unconstitutional and that it would no longer defend it in court.
However, it continues to enforce the law, pending a verdict by the Supreme Court, and the Republican leadership of the House of Representatives, in reaction to the Administration’s decision, commissioned the House General Counsel to defend the law in place of the Department of Justice.
To date, eight federal courts (including the First and Second Circuit Court of Appeals) have found the DOMA unconstitutional. And on 27 March of this year, the US Supreme Court heard the oral arguments of an appeal in one of those cases, United States v. (Edith) Windsor. A decision in the Windsor case – most likely to be announced this week (and perhaps even today) – could bring about a dramatic improvement of the situation of gay couples in the States.
Tough on bi-national couples
While DOMA affects all gay couples negatively (as it prevents marriage equality at the federal level, regardless of the existence of marriage equality at the state level), it has particularly extreme consequences for bi-national couples. Today, every straight American can wed a foreigner and petition for a green card for his/her spouse. And, yes, that’s how it should be! However, gays are excluded from this arrangement. To date, they cannot live together in the USA by virtue of being married. Therefore, many couples are faced with emigration to one of the safe havens that has achieved marriage equality to be able to continue to live together. Alternatively, they are compelled into illegally staying in the States, or face potential deportation of the foreign spouse.
Discrimination vs protection
The discrimination of gay couples – at the federal level – is inter alia under the pretext of protecting the “institution of marriage” between heterosexuals. According to the adversaries of marriage equality, the “institution of marriage” is the only unit in society that can safeguard the survival of human mankind. Those who support marriage equality and human rights for all fail to understand how the granting of rights to a minority group in society, could possibly harm the majority, including heterosexual reproduction.
Homophobia still a problem
Despite all progress made, homophobia is still rampant on Mother Earth, often times hidden behind alleged religious or ideological beliefs, including in societies that are extremely proud of their achievements in the field of freedom and civil liberties. Recent hate-crimes in the USA and France speak a clear language. Nevertheless, the global trend is clearly in favor of marriage equality with more and more countries adopting corresponding legislation.
America cannot wait for another 187 years
Many observers argue that a Supreme Court decision in favor of marriage equality is of paramount importance; leaving the matter to the States alone, would likely prolong discrimination and equality for quite a while. After all there are 50 very diverse United States of America.
Frank Hagler, author of the article “Leaving Act Up to the States would be mistake“, emphasizes this very point by drawing a parallel between the current discussion surrounding marriage equality and the issue of interracial marriages, stating: “In 1780 Pennsylvania became the first state to allow interracial marriages. However the ban on interracial marriages remained the law in many states until 1967, when the Supreme Court struck it down in Loving v. Virginia. At the time 16 states still had miscegenation laws on the books.”
America cannot afford to wait for another 187 years to repeal the discriminatory DOMA.
- Opinion: Same-sex couples deserve equal rights under the law (nbclatino.com)
- Waiting on Proposition 8 and DOMA decisions: In Plain English (scotusblog.com)
- U.S. Supreme Court Saves Biggest Decisions for Last (publicnewsservice.org)
- If DOMA Goes Away, Even on Limited Grounds, That’s ‘Huge Progress’ (acslaw.org)