The PG’s Reg Henry weighs in on DOMA

The Defense of Marriage Act took another blow this when the Department of Justice (part of the Executive Branch) anounced it will no longer defend DOMA in court.  Pittsburgh's own Reg Henry weighs in with a very pragmatic priece.

DOMA, on the other hand, is increasingly uncool, being social and religious prejudice written into law.

I am of the view that if you don't like gay marriage, don't marry a gay person. Otherwise, shut up and mind your own business.

However, isn't part of the president's job defending the indefensible? The president, under the Constitution, is supposed to take care that the laws are faithfully executed. It is the Supreme Court that is ultimately supposed to decide whether laws are constitutional.

Mostly I fear the return of the culture wars, the greatest excuse for avoiding the nation's real problems that was ever invented. I fear the prospect of Rick Santorum getting on his high horse and saying, “DOMA, he's making eyes at me!”

Still, to the extent it encourages a put-upon minority, I am glad.

The attorney general issued a statement, part of which I believe addresse Reg's concerns.

After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny.   The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional.   Given that conclusion, the President has instructed the Department not to defend the statute in such cases.   I fully concur with the President's determination.

Consequently, the Department will not defend the constitutionality of Section 3 of DOMA as applied to same-sex married couples in the two cases filed in the Second Circuit.   We will, however, remain parties to the cases and continue to represent the interests of the United States throughout the litigation.   I have informed Members of Congress of this decision, so Members who wish to defend the statute may pursue that option.   The Department will also work closely with the courts to ensure that Congress has a full and fair opportunity to participate in pending litigation.  

Furthermore, pursuant to the President ' s instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President's and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.

This is not a blanket denial of the appropriate role of the DOJ, but a clear statement that DOMA cases will be subjust to a higher level of scrutiny based on the Administration's interpreation of certain segments of the law.  My understanding is that the DOJ does not routinely defend every such case anyway, but we must be wary of greater state momentum to implement DOMA state by state.  This, of course, includes Pennsylvania. 

North Carolina is already pushing an constitutional amendment. 

Advocates have been warning for years that the increasing tangled web of equality will create a myriad of problem for everyone, including the IRS.  If marriage equality challenges to DOMA are subject to a heightened level of scrutiny, what impact will that have on the courts and the 10th Amendment?

It is complicated my friends, but imperative that we try to stay on top of these changes.  And even more imperative that we work hard to elect pro-LGBTQ officials locally and statewide.

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