March 7, 2011

The Trouble With DOMA

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The question that was once “Can they marry, or can’t they?” has officially become “Can they marry, or can’t they, and if they do, can we pretend they didn’t?”

Two weeks ago, the Department of Justice announced that it would no longer defend section 3 of the Defense of Marriage Act, which defines marriage as exclusively between a man and a woman for all federal purposes. While states have always had the right to legalize same-sex marriage within the chambers of their state legislatures, the federal government has refused to recognize such marriages since DOMA was passed in 1996, regardless of whether marriages are legally performed in an individual state. Therefore, same-sex couples that the media celebrates or abhors after they pioneer the path to marriage are married according to the state, but are in a legal twilight zone in the eyes of the federal government.

In a statement responding to the DOJ’s announcement, Speaker of the House John Boehner (R-Ohio) emphasized the DOJ’s place in the executive branch and called Obama out on motivating the denouncement: “It is regrettable that the Obama Administration has opened this divisive issue at a time when Americans want their leaders to focus on jobs and the challenges facing our economy.”

No one could deny that the recession has proved to be an intense hardship for many Americans. My question to Boehner is how those hardships preclude basic civil rights for gay and lesbian citizens of this country.

To dismiss this question of the federal-state relationship and civil rights in the face of economic concerns is to fail the people. We elect politicians to represent us on many issues, not just the one that seems most urgent at a given moment. I think Boehner knows this, too — so why is he shirking his duties and avoiding the subject at hand?

As the sole legislative body of the United States, isn’t it Congress’ responsibility to take on more than one issue at a time? We can’t let the economy eclipse all of our attention, or citizens will suffer in the decades to come because of the narrow scope of today’s legislative agenda.

Boehner put together a group of five legislators to determine whether the House’s Office of the General Counsel will defend the legislation against an attack in the Supreme Court. This panel includes two Democrats — Minority Leader Nancy Pelosi (D-Calif.) and Minority Whip Steny Hoyer (D-Md.) — and three Republicans — Boehner, House Majority Leader Eric Cantor (R-Va.) and Majority Whip Kevin McCarthy (R-Calif.). Boehner, Cantor and McCarthy all have voting records that clearly indicate a prior bias to defend the bill, thereby preventing the federal government from recognizing same-sex marriage.

Three to two, social conservatives to social liberals. Therefore it’s unlikely that this sham of a panel will even give a fair and even evaluation of whether the House should act to save DOMA. Pursuing this defense will cost a lot of taxpayer dollars and a lot of time. By insisting on the legitimacy of DOMA, therefore, Boehner is snatching even more attention away from the economic issues that he professes to be so concerned with.

The hypocrisy here is important to note. Republicans always use the 10th Amendment to prevent social liberals of all political denominations from enacting sweeping change to federal social policy. Therefore, in theory Republicans respect and support states’ rights, but in practice, they endorse DOMA, which directly allows the federal government to infringe on the legitimacy of the states. Whether or not you agree with the 10th Amendment, it exists as part of the Constitution, and legislators have an obligation to respect it. If the federal government refuses to acknowledge marriages guaranteed by state law, then it isn’t really respecting the right of the state to exercise its power. Republicans need to own up to this loophole in their social agenda: is recognizing the right to marry legitimately and legally within the jurisdiction of the state or the federal government?

Continuing on from the 10th Amendment, DOMA undermines due process — a fundamental building block of the American legal system. Due process guarantees that the government respect the legal rights guaranteed to a citizen. By state law in Connecticut, Iowa, Massachusetts, New Hampshire, Vermont and the District of Columbia, marrying someone of the same sex is a guaranteed right. Because our country maintains a delicate balance between state and federal sovereignty, it’s especially important that the federal government not ignore rights that gay and lesbian citizens have been promised by the state. It breeds disrespect for the law. It delegitimizes the power of the states to do much of anything. Due process has to be respected, or the government cheapens citizenship.

In the Constitution there is no such thing as a second-class citizen. In this nation, however, members of the LGBT community are consistently treated as such. Boehner is a high-ranking representative of the Republican legislative mission, imbued with the right to make decisions on behalf of his friends, family, constituents and beyond. By pledging himself to the principles of DOMA, he legitimizes the concept that American citizens can be denied civil rights because of their sexual orientation, and others will follow him.

I challenge them to look at DOMA carefully and decide whether or not the federal government should subordinate some of its citizens regardless of whether the people of a given state have voted to do so or not. That’s a slippery, scary slope to go down, and in time, ignoring the few states that have legalized gay marriage will cost the United States its unity.

Maggie Henry is a freshman in the College of Arts and Sciences. She may be reached at mhenry@cornellsun.com. Get Over Yourself appears alternate Tuesdays this semester.

Original Author: Maggie Henry