DOMA, DOMA, DOMA: 2, Executive & Legislative Challenges

  1. Executive. There’s a campaign under way to get President Obama to say he supports marriage equality; he hasn’t gone that far, claiming instead that his position “continues to evolve.” He has said that he opposes DOMA—which means little, in practice, for all the reasons we know from middle-school civics classes. Because it’s Congress’s job to make laws and the executive branch’s job to enforce them, the president can’t just stop enforcing DOMA: Same-sex couples still have to file taxes as single, and so forth. However, the executive branch does have some discretion. To wit:
    1. In February 2011, Obama’s administration made big news when Attorney General Eric Holder announced that his office would no longer defend DOMA in court—because they believed it was unconstitutional, for the reasons listed in the lawsuits below. This was controversial. However:
    2. The U.S. has stopped some deportations of a binational married couple’s foreign-born spouse, saying that getting rid of people who are here for love (OK, that’s how I, not Homeland Security, put it) “is not an enforcement priority at this time.”
  2. Legislative. Congress
    1. Since the executive branch isn’t defending DOMA in the lawsuits listed below, Congress—the body that passed it—has the right to do so. And so it is. The House Bipartisan Legal Advisory Group, or BLAG, has hired an uber-expensive legal team, led by former solicitor general Paul Clement, to do the work of defending the law in an array of DOMA section 3 challenges, not just the frontal assaults but also related bankruptcy and inheritance cases.
    2. But the “B” in BLAG isn’t. More recently, Pelosi and 130 congressional Democrats filed an amicus brief in the consolidated Gollinsky cases in the First Circuit (See 1.a., below), arguing that BLAG doesn’t represent the whole Congress. So there.
    3. And as noted earlier, Congress’s Respect for Marriage Act, which just passed out of the Senate Judiciary Committee on a 10-8 party-line vote, has 30 co-sponsors in the Senate and 132 in the House.
      • No one expects it to go further in this session, but watch for it next session.

Of course, just as the courts are influenced by the other branches' actions, so Congress and the resident are affected by the fact that the courts are generally ruling against DOMA. And all of them have their eyes on the fact that every major poll shows American public opinion is steadily shifting in favor of same-sex marriage.

All this is just the action on DOMA. More than 30 states have individual bans on recognizing same-sex marriages. I’ll do myt best to find out if anything is happening on those local fronts.

If you have any news there—or really, about anything you think I should be posting—please contact me at