Marriage: Equality’s Final Frontier – Why DOMA Matters

E.A. Sweeney

In just a few months’ time, gays and lesbians will finally be able to serve openly in the United States military. After twenty years of silent service and 14,000-plus discharges (not to mention the abuse and discharges incurred before DADT), the anticipation for a post-repeal environment grows by the day. Despite the significant achievement made last December by Congress and the president, the battle for equality among our peers does not end when repeal is implemented.

In last August’s landmark federal decision out of California, called Perry v. Schwarzenegger (known colloquially as the Prop 8 case), Judge Vaughan Walker wrote the following: “Animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate.”

Judge Walker was referencing the now-infamous Defense of Marriage Act (DOMA), signed into law by President Bill Clinton in 1996, and passed by Congress with huge margins from both parties. The bill originally came to Congress because of a case brought to the Supreme Court of Hawaii, called Baehr v. Miike, which concerned three same-sex couples who argued that the state’s prohibition of same-sex marriage violated the state constitution. The Supreme Court of Hawaii ultimately sided with the couples; however, the case became null because the state legislature eventually passed a law limiting marriage between “mixed-sex couples” only. The case made waves around the country, as anti same-sex marriage supporters feared that other states would have to recognize Hawaii’s marriages because of the Full Faith and Credit Clause (FFCC) of the U.S. Constitution. The clause essentially lists the duties that states have with respect to honoring “public acts, records, and judicial proceedings of every other state.” In practice, the FFCC typically applies to judgments made in suits concerning family law, such as child support or Orders of Protection, where, regardless of which state one lives in, each state must honor that ruling. Since the late 1880’s however, the Supreme Court introduced what is known as a “public policy exception” to this clause, meaning that if the laws of one state are in direct conflict of laws in another state, each state has limited autonomy to enforce what their citizenry deems appropriate.Such was the case, ironically, with interracial marriage in the 1960’s.

Up until the Supreme Court, in a unanimous decision, struck down all laws banning interracial marriage in the landmark civil rights case Loving v. Virginia, each state essentially had their own law on whether it was legal to marry someone of a different race. The parallels here are obvious: whereas, in the past, discrimination was directed towards African and white Americans being able to marry, now the battleground has shifted to gays and lesbians. Despite the public policy exception to the FFCC, however, Congress deemed it necessary to enshrine their disapproval of gays and lesbians from marrying into law. Thus, DOMA was born.

So, why is DOMA a law that we, as LGBT servicemembers, need to concern ourselves with?

As a military member, there are multiple reasons why we should care about the fate of DOMA and the cases currently before the courts. Since the military is part of the federal government, it is beholden to federal laws such as DOMA. To put this into perspective, let me provide the following example. Let’s say that you just got married in a state that allows same sex marriage (this is now allowed under the new policy) and are about to PCS to a new assignment. Currently, the military will not recognize that marriage, pay to relocate your spouse, provide on-base housing, or any medical benefits to your spouse. The only two benefits that the military has agreed to thus far are to allow same-sex partners to apply for hardship assignments (when being separated from one’s spouse will cause significant temporary hardship) and to allow samesex civilian partners to utilize the family support centers on base to obtain referrals for health-related support off-base.

So what are the chances that the law will be repealed?

The Congress is unlikely to repeal DOMA because there is not enough support in either chamber for a bill to pass. In fact, just last month in the House, during the markup session for the annual Defense Authorization bill, an amendment was approved that reaffirmed that the military is beholden to the guidance set forth in DOMA. The Obama Administration has done its part by refusing to defend Section III of the law, the part that defines marriage solely as between a man and a woman; this, however, does not invalidate the law. Thus, most analysts believe that the Courts will ultimately be the final arbiters of this issue.

Arguably, the two most important cases surrounding DOMA are the Prop 8 case and Gill v. Office of Personnel Management. Both cases are currently at the Appeals Court level, where oral arguments are scheduled to begin this year. Regardless of the decision, however, it is likely that either side will appeal directly to the Supreme Court for a final ruling. Though most news attention has focused around the Prop 8 case, I’d argue that the Gill case is more important for two reasons. First, it’s very likely that the defendants in the Prop 8 case will not have standing to continue defending the law, since both former Gov. Arnold Schwarzenegger and former State Attorney General Jerry Brown have refused to defend the law in court. If the California Supreme Court rules that the defendants don’t have standing, then the ruling by Judge Walker invalidating the law will stand, and Californians will be able to marry whomever they choose. The problem, however, is that the ruling would only apply to residents of California, and not the nation as a whole.

Hence, the importance of the Gill case. In this case, and the second reason why it’s so important, is that the lawsuit directly challenges Section III of DOMA, whereas the Prop 8 case only concerns the California law. The first ruling in the Gill case went for proponents of same sex marriage, ruling that DOMA violates the equal protection clause in the Fifth Amendment of the Constitution. Thus, if the Supreme Court eventually agrees to hear the case and subsequently affirms the lower Court’s decision, the entire law becomes invalidated, and all states must then allow same-sex marriage.

If this were to happen, the military would face intense pressure to give same-sex partners the same benefits afforded to heterosexual couples as well. Then, finally, our Nation would grant us full equality. Judge Walker said it best in his ruling out of California: “Same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage,” and, as a result, have a “fundamental right to marry.”

All eyes, now, are cast towards the Supreme Court.

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E.A. Sweeney is the managing editor for OutServe Magazine. He is an Air Force Intelligence
Officer and has been serving on active-duty since 2007.