The Defense of Marriage Act

The Defense of Marriage Act has been a topic of debate since the news hit late Wednesday night, February 23, 2011. President Obama’s Department of Justice decided not to defend the Defense of Marriage Act and in doing so declared their belief that the law is unconstitutional, according to nytimes.com. This development helps the LGTB community in their fight for equality because it could prove to be a step towards the legalization of same-sex marriage. In 1996, a Hawaii court ruled in Baehr vs. Lewin that: “The state's prohibition of same-sex marriages amounted to discrimination on the basis of sex. Under the state's Equal Rights Amendment, the state would have to establish a compelling state interest supporting such a ban, a fairly strict standard” (Findlaw). This one case lead to an uprising, and the government struck back. Although President Bill Clinton reached out to the gay community when he was campaigning to be president, he signed several bills that discriminated against the gay community during his presidency. One of those acts was the Defense of Marriage Act.

According to domawatch.org, “ (DOMA) defines marriage as a legal union between one man and one woman for purposes of all federal laws, and provides that states need not recognize a marriage from another state if it is between persons of the same sex”. When the law was implemented, its consequences had a horrendous impact on the gay community. This meant that the federal government would not consider any same-sex couple to be legally “married” even if that couple is legally married in their state.  When Hawaii opened the door to the possibility of same-sex marriage, they unintentionally set back the LGTB community by at least 15 years. 15 years after President Bill Clinton Signed the act that discriminated against the LGTB community, President Obama’s Department of Justice has determined that DOMA is unconstitutional. After looking at the Full Faith and Credit Clause, I have also come to the same conclusion.

DOMA is a clear violation of the Full Faith and Credit Clause, provided in Article IV of the US constitution. This clause “requires states to give full faith and credit to the public acts, records, and judicial proceedings of the other states” (Findlaw Legal Dictionary). The clause in DOMA that allows states not to recognize marriages from other states if it’s between persons of the same sex is a clear violation of this clause. If in the clause all public acts are required to be recognized in other states, then same-sex marriage should be recognized in other states outside of the state the marriage took place. Also, it is clearly discrimination by a person based on sexual orientation. Before this decision was made by Obama’s Department of Justice, the LGTB community was not considered a protected class. However, this decision will help to give precedent for the LGTB community to be considered a protected class, and possibly open the door for many rulings that favor the LGTB community.

The implications of Obama’s decision are not really clear. Right now, there are two cases going on in the second Circuit Court of Appeals that are dealing with the constitutionality of DOMA (scpr.org). If the Attorney General is not going to defend the cases, it makes it questionable whether someone else will defend the case. This is a giant leap forward for the LGTB community. The fact that Obama’s Justice Department is taking a stand on this issue shows the country is heading in a different direction with regards to the rights of the LGTB community. If respected public figures continue to show their acceptance of the LGTB community, the hop for equality may someday not just be a dream for many, but reality.

References

"1993: The Hawaii Case of Baehr v. Lewin - Divorce & Family Law Center." Divorce, Child Custody, Child Support, Marriage, Adoption - FindLaw Family Law Center. Web. 25 Feb. 2011. <http://family.findlaw.com/same-sex-couples/case-of-baehr-v-lewin.html>.

"Constitutional Principles behind Obama's DOMA Decision | 89.3 KPCC." Home | 89.3 KPCC. Web. 25 Feb. 2011. <http://www.scpr.org/programs/airtalk/2011/02/24/legal-aspects-of-doma/?c=58968>.

Defense of Marriage Act (DOMA): Legal Resources and Information. Web. 25 Feb. 2011. <http://www.domawatch.org/index.php>.

"Full Faith and Credit Clause: Definition of Full Faith and Credit Clause. Define Full Faith and Credit Clause." Dictionary of Law. Define Legal Terms at FindLaw. Web. 25 Feb. 2011. <http://dictionary.findlaw.com/definition/full-faith-and-credit-clause.html>.

Shear, Michael D. "Obama Decision on Marriage Act Has 2012 Implications - NYTimes.com." Politics and Government - 2012 Presidential Watch - The Caucus Blog - NYTimes.com. Web. 25 Feb. 2011. <http://thecaucus.blogs.nytimes.com/2011/02/24/obama-decision-on-marriage-act-has-2012-implications/?scp=1&sq=DOMA&st=cse>.

The Fight throughout Time

Struggling for equality has been an issue for many different minority groups throughout history in America. African Americans struggled with slavery and women struggled to be equal. These were public struggles, and are taught to children as they grow up. One minority group, which encompasses millions of people, has been struggling for equality for years, but has been under the radar of most people until the early 70’s. Rights for gays and lesbians finally surfaced after the stonewall riots in 1969, and it was the start of a revolution for this minority group to fight for equality.  Throughout time, people have used religion as an excuse to discriminate against people who are different from themselves. When there were miscegenation laws, there excuse was that God put the different races on different continents, and therefore people were not supposed to marry outside their race. This same logical thought has been used to discriminate against the Lesbian, Gay, Transgender, and Bisexual community, or the LGTB community. This discrimination is not just in America, but throughout the world. There are 11 countries in the world countries in the world where homosexuality is punishable by death (Professor Disario). In fact, several of the countries where homosexuality is punishable by death are countries where the Islamic people are a majority. Discrimination like this is unnecessary.

Homosexuality has sometimes been seen as a choice, someone chooses to be homosexual. If homosexuality was a choice, there would not be a high correlation between homosexuality and suicide. “Studies of human sexuality have noted high rates of suicidality [sic] among homosexual youth…” (AAP).  If someone’s choice was to be homosexual, they would probably not want to commit suicide for being homosexual. At the same time, why would homosexuality be a world-wide issue if it was a choice? Homosexuality has been around for thousands of years. In ancient Greece, homosexuality was not just accepted as a part of nature, but in was encouraged. “ For many in Greek society, the highest form of love affair was considered to be that between two males, one an adult and the other a young boy before puberty” (Sex Crimes). It is important to note this was before the rise of Christianity, and homosexuality was common. It seems that if homosexuality was a choice, it would not have been around for this many centuries.

Another factor that shows that homosexuality is not a choice are studies that have proven that a homosexual man’s brain’s is similar to a woman’s brain and a homosexual woman’s brain is similar to a male’s brain. “MRI scanning revealed that the two hemispheres of homosexual men’s brains are equal in volume, like those of heterosexual women. Similarly, the right hemisphere of homosexual women is slightly larger than the left hemisphere, as is the case for heterosexual men” (Scanning Sexuality). This study is scientific proof that being homosexual is not a choice, but is a quality someone is born with. It is still not known whether environmental factors play a role in homosexuality, but seems that it would only help to encourage, or discourage, a person to be the sexuality they are born. 

Homosexuality is a highly diverse topic, one that touches millions of people. When looking at how many people are gay in America, I found a study by AVERT (Averting HIV and AIDS) who found “This can be interpreted as there being nearly 1.2 million gay people living with a same sex partner in America. This is a huge increase from the 1990 census, which identified only 145,000 same sex unmarried households.” If more than 1 million people in America alone are homosexual, it can be concluded that millions of people all around the world are homosexual, and are affected by discrimination. This is a serious issue, and one that needs to be looked at intelligently and without bias.  

References:

Gary Remafedi, James A. Farrow, and Robert W. Deisher (1991)
Risk Factors for Attempted Suicide in Gay and Bisexual Youth
Pediatrics, 87, 869 - 875.

Holmes, S. T., & Holmes, R. M. (2009). Sex Crimes (3rd Ed). Thousand Oaks, California: Safe Publications Inc.

How Many Gay People are there? (2011). Retrieved February 9, 2011, from http://www.avert.org/gay-people.htm

Nicholson, C. (2008). Scanning sexuality. Nature Reviews Neuroscience, 9(8), 582.

Professor Disarrio (Writer). (2010). Current State of Gay Rights. [PowerPiont]