WASHINGTON — When President Barack Obama instructed the U.S. Justice Department to stop defending an anti-same-sex marriage law, some observers called it a stroke of political brilliance.
Polls suggest a growing number of Americans support same-sex marriage, after all, and Obama’s move would force Republicans to defend the Bill Clinton-era legislation in court or risk angering their socially conservative base — all as a presidential election looms.
If that was Obama’s gambit, it has apparently worked.
John Boehner, speaker of the House of Representatives, said Monday that his party will indeed take steps to defend the Defense of Marriage Act, which faces legal challenges in several states, since the Obama adminstration says it won’t. In the same breath, he griped that Obama was playing politics.
“It strikes me as something that’s just as raw politics as anything I’ve seen, knowing that a lot of people who believe in DOMA are probably not likely to vote for him and pandering to the other side on this issue,” Boehner said in an interview with the Christian Broadcasting Network.
Nevertheless, Boehner said, several options were “on the table” for Republicans, including appointing a special counsel to defend the law, he suggested.
“I’d be very surprised if the House didn’t decide that they were going to defend the law,” he said.
“It’s happened before where administrations have decided they weren’t going to go out and vigorously defend a law that Congress passed . . . but if the president won’t lead, if the president won’t defend DOMA, then you’ll see the House of Representatives defend our actions in passing a bill that, frankly, passed overwhelmingly.”
Indeed, DOMA did handily pass a Republican-controlled Congress in 1996 and was signed into law by former president Bill Clinton, who has since said he supports same-sex marriage.
The act defines marriage as between a man and a woman, bars federal recognition of same-sex marriages and allows states to do the same.
As a result, same-sex married couples are denied access to marriage-based federal benefits.
But the law passed 15 years ago, and the landscape has since changed dramatically in the United States when it comes to same-sex unions.
The push for equal rights for the gay, lesbian and transgendered community is now considered a civil rights battle. Obama himself called DOMA unconstitutional when directing Attorney General Eric Holder to cease defending it.
Holder’s message to congressional leaders last week cited the case of Edith Windsor, an elderly New York lesbian who was hit by a US$363,000 federal tax bill upon the death of her partner of 40 years — and legal spouse for the past two after they wed in Canada.
Windsor, 81, would have been exempt from the bill had she been married to a man, but DOMA prevents the U.S. government from recognizing same-sex unions, even though such marriages are legal in the state of New York.
“I couldn’t believe that our government would charge me $350,000 because I was married to a woman and not a man,” Windsor, 81, said in a video statement from the American Civil Liberties Union, which is helping to represent her in her legal battle against DOMA.
The administration’s move is in keeping with where Americans are headed in the debate, as polls consistently suggest growing numbers of U.S. citizens support the legal recognition of same-sex marriage.
An Associated Press-National Constitution Center Poll conducted last August found 52 per cent of Americans believed the federal government should legally recognize same-sex marriages, while 46 per cent said it should not.
But one political observer says neither party has shone very brightly on the issue.
“The American public is quickly moving to the idea that this isn’t worth any more of our mental effort; they’re increasingly comfortable with gays and lesbians having a full slate of civil rights,” said Cal Jillson, a political science professor at Southern Methodist University in Dallas.
“But the Obama administration is saying now that it won’t defend DOMA in court, but it will continue to enforce the law, which is certainly a head-scratcher. And that limits the political mileage the Obama administration and Democrats can get from this issue.”
Republicans, however, face an even bleaker situation.
“Republicans are in far worse shape because the public is moving away from them quickly on gay rights, and they’re seen as being out of step and unnecessarily nasty. If they try to mount a congressional defence of DOMA, they’ll just draw attention to the fact that they are out of step with the public.”
When he ran for president, Obama vowed to repeal DOMA, calling it “abhorrent.” But once he occupied the Oval Office, the administration argued he was duty-bound to enforce the law regardless of his personal opinions about it.
Even as the Justice Department defended it, it added the caveat that it was doing so “until Congress passes legislation repealing the law.”
Now that Obama’s opted not to defend a congressional statute, at least one Republican has suggested he might have committed an impeachable offence.
“He swore an oath on the Bible to become president that he would uphold the constitution and enforce the laws of the United States — he’s not a one-person Supreme Court,” Newt Gingrich said in an interview with conservative website Newsmax.
“The idea that we now have the rule of Obama instead of the rule of law should frighten everybody … the fact that the left likes the policy is allowing them to ignore the fact that this is a very unconstitutional act.”