Anti-Gay Marriage Groups Begin Fight For DOMA

Anti-gay marriage groups alarmed at the election of a gay-affirming president are readying their forces and shoring up their defenses to protect the federal Defense of Marriage Act (DOMA).

The Alliance for Marriage Foundation, the group who drafted the Marriage Protection Amendment (MPA) in Congress, unveiled a new website at www.ProtectDOMA.org on Monday. The online resource gives facts and information about the law that forbids any federal agency from recognizing legal gay marriage. The law also allows states to ignore legal gay marriages performed in another state.

The legislation was authored by then-Republican Georgia Representative Bob Barr and signed into law by then-President Bill Clinton in 1996. Proponents argued that without the legislation gay activists would win the right to marry in a single state and foist it upon the rest of the nation. In the mid-1990's such a state was Hawaii. In 1993, the Hawaii Supreme Court ruled in Baehr v. Lewin that it was unconstitutional to refuse gay couples the right to marry. However, the court stayed the ruling and by 1998 the state had passed the first-ever gay marriage ban amendment in the United States, essentially overruling the court's decision.

“The repeal of DOMA is the legislative Holy Grail for activists who want to impose their radical social agenda upon America through the courts,” said Rev. Sam Rodriguez, Jr., an AFM Advisory Board member and president of the National Christian Leadership Conference (NHCLC) in a statement announcing the new effort.

The election of President-elect Barack Obama places the federal DOMA in peril.

While Obama does not support gay marriage, he has said he believes in repeal of the federal DOMA and granting gay couples civil unions.

“[President-elect Obama] believes we need to repeal the Defense of Marriage Act and enact legislation that would ensure that the 1,100+ federal legal rights and benefits currently provided on the basis of marital status are extended to same-sex couples in civil unions and other legally-recognized unions,” the Obama-Biden transition website says.

During the presidential campaign, Obama discussed how he would prefer to handle the repeal of the federal DOMA with gay weekly Philadelphia Gay News publisher Mark Segal, who asked if he would back a lawsuit to unseat the anti-gay legislation.

“I would want to review carefully any lawsuit that was filed,” Obama answered. “This is probably my carryover from being a constitutional lawyer. Here's where I can tell you [what] my principle is: DOMA was an unnecessary encroachment by the federal government in an area traditionally reserved for the state. I think that it was primarily sent as a message to score political points instead of work through these difficult issues. I recognize why it was done. I'm sympathetic to the political pressures involved, but I think that we need to bring it to a close and my preference would be to work through a legislative solution. I would also point out that if it's going before this court, I'm not sure what chances it would have to be overturned. I think we're going to have to take a different approach, but I am absolutely committed to the concept it is not necessary.”

The upcoming 111^th Congress' political ideology will differ greatly from the 85% majority that ratified the federal DOMA in 1996, setting the stage for possible repeal.

Proponents of federal DOMA, however, argue that the passage of three constitutional gay marriage bans on Election Day – in California, Arizona and Florida – gives them the political capital needed to keep the prohibition in effect.

“The new Congress gives President-elect Barack Obama the legislative numbers he needs to overturn DOMA,” said Rodriguez. “But will Congress follow his agenda or stand with the vast majority of Americans who believe marriage is between a man and a woman.”

Most states no longer need the law – forty-five states prohibit gay marriage, thirty by constitutional amendment. Only the District of Columbia, New York, New Jersey, New Mexico and Rhode Island have yet to define marriage, but most of those states lean left already. Gay couples in New Jersey and the District of Columbia are granted civil unions or domestic partnerships, while New York, New Mexico and Rhode Island recognize legal gay marriages performed elsewhere.

However, federal agencies such as the IRS might need to recognize gay couples who have married legally (available in Massachusetts, Connecticut and six countries) or entered into a civil union/domestic partnership (available in ten states).

A defensive posture on the federal DOMA before Obama's commitment to gay rights – and Congress' resolve in following him – has been tested suggests the AMF is taking the risk of repeal seriously.

The Human Rights Campaign, the nation's largest gay and lesbian rights organization, lists repeal of federal DOMA as a top priority.